Orion Mgt., Inc. v. Kaeka

2025 Ohio 1047

• Court: Ohio Court of Appeals
• Decided: March 26, 2025
• Docket: 30797
• Status: Published

Opinion

[Cite as Orion Mgt., Inc. v. Kaeka, 2025-Ohio-1047.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

ORION MANAGEMENT, INC. C.A. No. 30797

Appellant/Cross-Apellee

v. APPEAL FROM JUDGMENT ENTERED IN THE BRITTNEY KAEKA, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees/Cross-Appellants CASE No. CV-2019-10-4202

DECISION AND JOURNAL ENTRY

Dated: March 26, 2025

FLAGG LANZINGER, Presiding Judge.

{¶1} Appellant/Cross-Appellee, Orion Management, Inc. (“Orion”), appeals from the

judgment of the Summit County Court of Common Pleas. Additionally, Appellees/Cross-

Appellants, Brittney Kaeka and Brittany Latham (“Homeowners”), cross-appeal from the trial

court’s judgment. This Court affirms.

I.

{¶2} Homeowners purchased a house in Akron. Before they could move in, a storm

occurred. It caused a large tree to fall. The tree crashed through the middle of the roof at the back

of the house. That portion of the house consisted of a family room with a cathedral ceiling. The

tree destroyed all but the back wall of the family room, causing significant property damage.

Homeowners learned of the incident shortly after it occurred. They immediately drove to the

house. 2

{¶3} Orion is an insurance restoration contractor. When it learns a catastrophic event

has occurred, it dispatches an employee to the scene of the event to offer restoration services to

affected individuals. One of Orion’s employees met with Homeowners at their new house. As a

result of that meeting, Homeowners signed an Authorization to Perform and Direction of Payment

(“the Contract”). The Contract called for Orion to remove the felled tree and rebuild the house.

{¶4} Orion boarded up and placed tarps on the house to protect it from intrusion and

further weather-related damage. A period of delay then ensued while Orion met with the adjuster

from Homeowners’ insurance company, prepared bids and a scope of work, hired an architect to

design the rebuild, and secured a permit. Although Orion performed some demolition work before

securing the permit, its repair work did not begin for more than two months.

{¶5} During the period of delay that ensued, the tarp on the house shifted and tore. Water

entered the house through the open roof and eventually led to additional damage in other areas of

the house. For example, the hard wood flooring in other rooms rippled, the kitchen countertops

and cabinets bubbled and molded, the bathroom flooded, and the ceiling in the office collapsed

due to water absorption. According to Homeowners, Orion ignored their concerns about water

damage, failed to properly protect the house from adverse weather conditions, and failed to

mitigate the water damage (e.g., by installing dehumidifiers). According to Orion, it placed tarps

on the house on at least two separate occasions and was unable to guarantee dry conditions due to

the extent of the damage, the debris, and natural weather conditions. The additional damage caused

Orion’s initial rebuilding estimate to increase by more than $30,000.

{¶6} Homeowners became dissatisfied with Orion’s work before Orion could complete

the rebuild. Of particular concern, they believed the height of the new ceiling Orion installed in

the family room did not match the height of the old cathedral ceiling. Homeowners instructed 3

Orion to place a hold on its work and provide a bill for the services it had performed to date. They

then sent a letter to Orion outlining their concerns and requesting various issues be addressed.

Orion responded in writing and attempted to reach Homeowners by phone. Meanwhile, it directed

its crews elsewhere and removed the lockbox at the property. It is undisputed that, at that point,

Orion had not received any form of payment from Homeowners. When Homeowners failed to

reply to Orion, it notified them that it intended to file a mechanic’s lien against them for their

outstanding balance. Again, Homeowners did not respond. Orion then filed a lien and this lawsuit.

{¶7} Orion filed suit against Homeowners for breach of contract. 1 Homeowners

answered and filed the following counterclaims against Orion: (1) breach of the Consumer Sales

Practices Act (“CSPA”), (2) breach of the Home Solicitation Sales Act (“HSSA”), (3) breach of

the Home Construction Service Act (“HCSA”),2 (4) breach of contract, (5) slander of title, and (6)

quiet title. The final two counterclaims concerned the mechanic’s lien Orion had filed.

{¶8} Orion moved for summary judgment on Homeowners’ first and fifth counterclaims.

Homeowners responded in opposition, and Orion filed a reply. Meanwhile, Homeowners moved

for summary judgment on Orion’s claim for breach of contract. Orion filed a brief in opposition,

and Homeowners filed a reply.

{¶9} The trial court granted Orion’s motion for summary judgment against Homeowners

on their CSPA counterclaim. It found the CSPA did not apply because Orion and Homeowners

had not engaged in a consumer transaction. It found that they had engaged in a transaction

1 Orion also named Homeowners’ mortgage lender. Because it later dismissed its complaint against the lender, we limit our discussion to Homeowners. 2 Though frequently termed the Home Construction Service Suppliers Act and abbreviated “HCSSA,” the parties and the lower court routinely eliminated the word “Suppliers” when referencing and abbreviating the Act. To avoid unnecessary confusion, we adopt their nomenclature. 4

involving a home construction service contract. More specifically, it found that they had executed

a cost-plus contract. The trial court also (1) granted Orion’s motion for summary judgment against

Homeowners on their slander of title counterclaim, and (2) denied Homeowners’ motion for

summary judgment against Orion on its breach of contract claim. Homeowners moved the court

to reconsider its ruling, but the court denied their motions for reconsideration.

{¶10} After the trial court issued its summary judgment ruling, the parties filed motions

in limine. Relevant to this appeal, the parties asked the trial court to exclude the following

evidence. Homeowners moved to exclude any mention of insurance payments they received.

Orion moved to exclude any reference to (1) alleged violations of the HSSA, and (2) two sections

of the HCSA (i.e., R.C. 4722.02(A) and (B)). The trial court ultimately granted each of the

foregoing motions. In doing so, the court specifically found Homeowners’ counterclaim for breach

of the HSSA was moot. It cited its earlier summary judgment ruling that the parties had executed

a home construction service contract.

{¶11} A jury trial ensued. At its conclusion, the jury found in favor of Homeowners on

the breach of contract claim/counterclaim. The jury found in favor of Orion on the counterclaim

for breach of the HCSA. The jury awarded Homeowners $118,848.37 in damages. The trial court

entered judgment in favor of Homeowners in that amount. Additionally, the court ordered the

mechanic’s lien placed on the property released and quieted title to the property.

{¶12} Orion filed a motion for judgment notwithstanding the verdict or, in the alternative,

a new trial. Homeowners responded in opposition. Upon review, the trial court denied Orion’s

motion. 5

{¶13} Orion has appealed from the trial court’s judgment. Homeowners have cross-

appealed. Their appeals set forth a total of seven assignments of error for review. For ease of

analysis, this Court rearranges and consolidates several of the assignments of error.

II.

HOMEOWNERS’ ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING ORION’S MOTION FOR SUMMARY JUDGMENT ON [HOMEOWNERS’] COUNTERCLAIM UNDER OHIO’S CONSUMER SALES PRACTICE ACT.

HOMEOWNERS’ ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN GRANTING ORION’S MOTION FOR SUMMARY JUDGMENT ON [HOMEOWNERS’] COUNTERCLAIM FOR SLANDER OF TITLE.

{¶14} In their first and fourth assignments of error, Homeowners argue the trial court

erred when it awarded summary judgment to Orion on their counterclaims for breach of the CSPA

and slander of title. For the following reasons, we reject their assignments of error.

{¶15} Under Civ.R. 56(C), summary judgment is appropriate if:

(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for summary

judgment, the party moving for summary judgment must first be able to point to evidentiary

materials that demonstrate there is no genuine issue as to any material fact, and that it is entitled

to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant

satisfies this burden, the nonmoving party “must set forth specific facts showing that there is a

genuine issue for trial.” Id. at 293, quoting Civ.R. 56(E). This Court reviews an award of summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). 6

CSPA

{¶16} “The CSPA was enacted in 1972 and prohibits suppliers from committing unfair,

deceptive, or unconscionable acts or practices in connection with consumer transactions.” Krueck

v. Youngstown State University, 2019-Ohio-3219, ¶ 13 (9th Dist.), citing R.C. 1345.02 and

1345.03. It defines a “[c]onsumer transaction” as “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.” R.C. 1345.01(A). Importantly, that definition does not include “transactions involving a

home construction service contract as defined in section 4722.01 of the Revised Code . . . .” R.C.

1345.01(A). Although the CSPA used to govern residential construction contracts, the legislature

enacted the HCSA in 2012 “to make changes relative to residential construction and the [CSPA]

and to establish laws governing the practices of home construction service suppliers.”

Am.Sub.H.B. No. 383, 2012 Ohio Laws File 107.

{¶17} R.C. 4722.01 et seq. sets forth the HCSA. Under the HCSA, a home construction

service contract is one “between an owner and a supplier to perform home construction services,

including services rendered based on a cost-plus contract, for an amount exceeding twenty-five

thousand dollars.” R.C. 4722.01(C). At the time Homeowners contracted with Orion, the HCSA

defined the phrase “[h]ome construction service” as follows:

“Home construction service” means the construction of a residential building. “Home construction service” does not include construction performed on a structure that contains four or more dwelling units, except for work on an individual dwelling unit within that structure, or construction performed on the common area of a condominium property. 7

Former R.C. 4722.01(B). A “[r]esidential building” was and still is defined as “a one-, two-, or

three-family dwelling and any accessory construction incidental to the dwelling.” Former R.C.

4722.01(F); R.C. 4722.01(F).

{¶18} Orion moved for summary judgment against Homeowners based on their

depositions and exhibits referenced in those depositions. Homeowners both testified that they

hired Orion after a tree destroyed a portion of their newly purchased home. They testified that

Orion removed the tree, placed tarps on their home, and later began rebuilding it. Although

Homeowners took issue with Orion’s work, they admitted that Orion installed new subflooring,

reframed their living room, constructed and installed new trusses, and installed a new roof. They

admitted that they received at least one estimate for the work that needed to be performed,

estimating the final cost to be over $70,000. They also admitted that, after Orion stopped working,

it sent them a bill for $58,093.74.

{¶19} Orion argued it was entitled to summary judgment because its contract with

Homeowners was not a “consumer transaction” governed by the CSPA. See R.C. 1345.01(A).

Orion argued the Contract was a home construction service contract governed by the HCSA.

Homeowners opposed Orion’s motion for summary judgment in a brief in opposition as well as

two motions for reconsideration. They raised new arguments in their motions for reconsideration,

which the trial court considered on the merits. The trial court found Orion was entitled to summary

judgment because the CSPA did not apply to the Contract.

{¶20} Homeowners argue the trial court erred by awarding Orion summary judgment for

three reasons. First, they argue that Orion failed to support its motion with any Civ.R. 56(C)

evidence. Second, they argue the trial court erred when it found the HCSA applied to the Contract. 8

Finally, they argue the trial court erred when it found the Contract was a cost-plus contract under

R.C. 4722.02(A). We address each of their arguments in turn.

{¶21} Civ.R. 56(C) limits the type of evidence a court may consider in awarding summary

judgment. “[A] deposition transcript must be authenticated before it can be considered as legally

acceptable evidence for summary judgment purposes.” King v. Rubber City Arches, L.L.C., 2011-

Ohio-2240, ¶ 19 (9th Dist.). Other evidence falling outside the scope of Civ.R. 56(C) must be

incorporated by reference in a properly framed affidavit. Wicks v. Lover’s Lane Market, 2022-

Ohio-2652, ¶ 9 (9th Dist.). If it is not and the non-moving party objects to it, the trial court may

not consider it. McHugh v. Zaatar, 2015-Ohio-143, ¶ 8 (9th Dist.).

{¶22} Homeowners argue that Orion did not support its motion for summary judgment

with any proper Civ.R. 56(C) evidence. According to Homeowners, Orion filed uncertified

transcripts of their depositions and a set of exhibits. The exhibits were not attached to the

depositions. Nor were they incorporated by reference through a properly framed affidavit.

Homeowners objected to the transcripts as well as the exhibits. They argue that the trial court

could not consider any of Orion’s evidence because it did not comply with Civ.R. 56(C) and they

objected to its admission.

{¶23} The record does not support Homeowners’ assertion that Orion relied on uncertified

transcripts. It shows that Orion filed three separate sets of transcripts from Homeowners’

depositions. The first set accompanied its motion for summary judgment. Those transcripts were

certified by a court reporter. The second set accompanied its brief in opposition to Homeowners’

motion for summary judgment. Those transcripts also were certified by a court reporter. Finally,

Orion filed a third set of transcripts after Homeowners objected and moved to strike its evidence.

Those transcripts were certified by a court reporter and contained additional, notarized 9

certifications. The additional certifications provided that Homeowners had been notified of the

preparation of their transcripts and had not signed errata pages within thirty days. Orion filed all

three sets of transcripts before the trial court ruled on its motion for summary judgment. The trial

court refused to strike them, finding the transcripts had been certified. Homeowners have not

shown that the court erred in its ruling. See King at ¶ 16-22. Upon review, the record supports the

conclusion that the trial court properly considered the deposition transcripts. Accordingly, Orion

set forth evidence in support of its motion.

{¶24} To the extent Homeowners challenge the admission of Orion’s exhibits at the

summary judgment stage, we need not decide that issue to resolve this assignment of error. As

explained below, Orion’s challenge to the CSPA counterclaim was based primarily on an issue of

law, not facts. Homeowners’ depositions supplied all the facts necessary to resolve their

counterclaim. Accordingly, even if the trial court erred by admitting Orion’s exhibits, that error

was harmless, and this Court will not address it. See Civ.R. 61.

{¶25} The trial court found that Orion and Homeowners engaged in a transaction

involving a home construction service contract. Thus, it found that their contract was governed

by the HCSA, not the CSPA. Homeowners argue the trial court erred in its legal conclusion. They

argue that, at the time they contracted with Orion, the HCSA did not apply to contracts for home

repairs, remodels, or rebuilds.3 According to Homeowners, the CSPA governed those contracts

while the HCSA applied to contracts for new construction.

{¶26} As noted, the General Assembly enacted the HCSA in 2012. When it was enacted,

the HCSA defined a “[h]ome construction service” as “the construction of a residential building.”

3 We would note that Homeowners brought a counterclaim against Orion under the HCSA as well as the CSPA. 10

Former R.C. 4722.01(B). It defined a residential building as “a one-, two-, or three-family

dwelling and any accessory construction incidental to the dwelling.” Former R.C. 4722.01(F). It

did not define the word “construction.” See id.

{¶27} The Fifth and the Eleventh Districts have held that the HCSA, as originally enacted,

only applied to contracts for new home construction, not repairs, remodels, or renovations. See

A1 Heating and Cooling, Inc. v. Thomas, 2024-Ohio-109, ¶ 55-57 (5th Dist.); Beder v. Cerha

Kitchen and Bath Design Studio, LLC, 2022-Ohio-4463, ¶ 7-18 (11th Dist.). See also Estate of

Tomlinson v. Mega Pool Warehouse, Inc., 2023-Ohio-229, ¶ 17-27 (5th Dist.), rev’d on other

grounds, 2024-Ohio-1065. They based their rulings on the Supreme Court’s decision in State ex

rel. Celebrezze v. Natl. Lime & Stone Co., 68 Ohio St.3d 377 (1994). In that case, the Supreme

Court had to decide whether the Ohio Administrative Code required a mineral producer to secure

a permit before installing “[a] like-kind replacement” of a single piece of equipment within “a

complex manufacturing operation involving the emission of an air contaminant. . . .” State ex rel.

Celebrezze at syllabus. The Supreme Court found that the Administrative Code defined the term

“installation” as it applied to the installation of an air contaminant source or treatment works. Id.

at 380-382, citing Adm.Code 3745-31-01(I). The administrative code defined “installation” as

“‘to construct, erect, locate, or affix an air containment source or any treatment works.’” State ex

rel. Celebrezze at 380, quoting Adm.Code 3745-31-01(I). Because the administrative code did not

define the word “construct,” the Supreme Court looked to the Sixth Edition of Black’s Law

Dictionary. State ex rel. Celebrezze at 382. The Supreme Court wrote:

According to Black’s Law Dictionary (6 Ed.1990) 542, “erect” and “construct” are synonymous terms. “Construct” is defined as “[t]o build; put together; make ready for use . . . [and] is distinguishable from ‘maintain,’ which means to keep up, to keep from change, to preserve.” Further, “construction” is defined as “. . . [t]he creation of something new, as distinguished from the repair or improvement of something already existing. . . .” 11

(Alterations in original and internal citations omitted.) Id. The foregoing definitions and other

considerations led the Supreme Court to conclude that “[a] like-kind replacement” of a single piece

of equipment was not an “installation” for purposes of Adm.Code 3745-31-02(A). Id. at syllabus.

{¶28} The Fifth and Eleventh Districts relied on the foregoing definitions of “construct”

and “construction” when interpreting that term within the meaning of the HCSA. See A1 Heating

and Cooling, Inc. at ¶ 57; Beder at ¶ 13. Consequently, they found the HCSA, as originally

enacted, did not govern contracts for home repairs, remodels, or renovations. Homeowners argue

the trial court ought to have relied on those same definitions. Instead, it relied on a vocabulary

website to supply the ordinary meaning of the word “construction.” That definition included both

the building of new structures and the repair of old ones. Relying on that broader definition, the

trial court found the contract between Orion and Homeowners was a home construction services

contract. Thus, it concluded that the HCSA rather than the CSPA applied to their contract.

Homeowners argue the trial court erred as a matter of law when it ignored the Supreme Court’s

interpretation of “construct” and “construction” as well as the persuasive authority of the Fifth and

Eleventh Districts.

{¶29} Upon review, we cannot conclude the trial court erred when it found the CSPA did

not apply to the contract between Orion and Homeowners. The Supreme Court’s decision in State

ex rel. Celebrezze dealt with the interpretation and application of a specific provision of the Ohio

Administrative Code. 68 Ohio St.3d 377 at syllabus. The Supreme Court only considered

definitions of the words “construct” and “construction” for the purpose of defining the term

“installation” within that provision of the administrative code. Id. at 382. The Supreme Court

acknowledged that “construct” could simply be defined as “‘[t]o build; put together; make ready

for use . . . .’” Id. at 382, quoting Black’s Law Dictionary (6th Ed. 1990). Its decision to apply 12

the more limited definition of “construction” stemmed from (1) its interpretation of other words

used in the administrative code section at issue, (2) the reasonableness of that interpretation, and

(3) the “considerable deference” it had to afford the Ohio Environmental Protection Agency’s

interpretation of its own rules. Id. at 382. This Court is not convinced the Supreme Court intended

its decision to supply a singular definition to the term “construction” for all future cases, regardless

of circumstance. Moreover, the “construction” definition upon which the Supreme Court relied

became obsolete in 1999. Since that time Black’s Law Dictionary has defined “construction” as

“[t]he act of building by combining or arranging parts or elements; the thing so built.” Black’s

Law Dictionary (7th Ed. 1999); Black’s Law Dictionary (12th Ed. 2004).

{¶30} The Black’s Law Dictionary definition of “construction” in effect since 1999 as

well as the standard definition of the word support the conclusion that it encompasses more than

just new construction. See id.; Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003)

(defining “construct” and “construction” without distinguishing between new construction and

repairs, remodels, and renovations). While Former R.C. 4722.01 did not define “construction,” it

did provide that a “[h]ome construction service contract” was a contract “between an owner and

a supplier to perform home construction services . . . .” R.C. 4722.01(C). The statute defined the

term “[o]wner” as follows:

“Owner” means the person who contracts with a home construction service supplier. “Owner” may include the owner of the property, a tenant who occupies the dwelling unit on which the home construction service is performed, or a person the owner authorizes to act on the owner’s behalf to contract for a home construction service, and any other person who contracts for a home construction service.

(Emphasis added.) Former R.C. 4722.01(E). Were the HCSA limited to new construction, the

italicized portion of that definition would not make sense. A tenant could not occupy a dwelling

unit that had yet to be built. 13

{¶31} Notably, when the house bill that eventually became Former R.C. 4722.01 was

introduced at General Assembly, it restricted “home construction services” to “the construction of

a new residential building or the substantial rehabilitation of a residential building. . . .” 2011

Am.H.B. No. 383. It also provided a definition for “substantial rehabilitation.” Id. That restriction

and definition were not included when the General Assembly enacted Former R.C. 4722.01. Thus,

the legislature chose not to adopt a narrower definition of “home construction services.”

{¶32} A broader interpretation of “construction” serves the legislature’s stated purpose in

enacting the HCSA, which was “to make changes relative to residential construction and the

[CSPA] and to establish laws governing the practices of home construction service suppliers.”

Am.Sub. H.B. 383, 2012 Ohio Laws File 107. This Court also would note that the legislature

recently amended R.C. 4722.01. That amendment went into effect in September 2024. It revised

the definition of “[h]ome construction service.” The current version of the statute now defines the

phrase as “the construction of a residential building, including the creation of a new structure and

the repair, improvement, remodel, or renovation of an existing structure.” R.C. 4722.01(B). While

inapplicable to the contract at issue, the amendment eliminates any doubt as to whether the

legislature intended the HCSA to apply only to new construction.

{¶33} This Court must conclude that the trial court did not err as a matter of law when it

found that the CSPA did not apply to the contract between Orion and Homeowners. Because their

transaction involved a home construction service contract, it was not a consumer transaction. See

R.C. 1345.01(A). Accordingly, only the HCSA applied to it.

{¶34} Homeowners also argue the trial court erred when it found their contract with Orion

was a cost-plus contract. Yet even if the trial court erred in that regard, its ruling would have no

bearing on Homeowners’ CSPA counterclaim. Former R.C. 4722.01(C) defined a “[h]ome 14

construction service contract” as “a contract between an owner and a supplier to perform home

construction services, including services rendered based on a cost-plus contract, for an amount

exceeding twenty-five thousand dollars.” (Emphasis added.). Orion set forth evidence that its

contract with Homeowners was for home construction services exceeding $25,000. Even if the

contract was not a cost-plus contract, it still met the definition of a “[h]ome construction service

contract” under Former R.C. 4722.01(C). Thus, any error the court made in classifying the contract

as a cost-plus contract was harmless insofar as it concerned Homeowners’ CSPA counterclaim.

See Civ.R. 61.

{¶35} Upon review, Homeowners have not shown the trial court erred by awarding Orion

summary judgment on their CSPA counterclaim. Accordingly, their first assignment of error is

overruled.

Slander of Title

{¶36} “Slander of title is a tort action premised upon defamation of real property . . . .”

Gasper v. Bank of America, N.A., 2019-Ohio-1150, ¶ 36 (9th Dist.). “To prove slander of title, the

plaintiff must show that a false statement was made, published maliciously, and the false statement

resulted in a special pecuniary loss to the property holder.” Baker v. Fish, 2000 WL 1783577, *5

(9th Dist. Dec. 6, 2000). “A mechanic’s lien which falsely and maliciously casts a cloud upon a

title may give rise to a cause of action for slander of title.” Smith Elec. v. Rehs, 1998 WL 103334,

*3 (9th Dist. Feb. 18, 1998).

{¶37} In moving for summary judgment against Homeowners, Orion argued there was no

evidence tending to show it acted in a false, malicious, or reckless manner when it filed its

mechanic’s lien. When deposed, Homeowners admitted Orion performed work at their property.

They admitted that Orion moved the tree that damaged their property, placed tarps on their 15

property, installed new subflooring, reframed their living room, constructed and installed new

trusses, and installed a new roof. Ms. Kaeka testified that she and Ms. Latham eventually became

dissatisfied with Orion’s work and sent Orion a letter. The letter ordered Orion to place a hold on

its work and forward any invoices. The letter also explained why Homeowners were dissatisfied

with the work Orion had performed. Ms. Kaeka admitted that Orion’s CEO had responded to the

letter. The response addressed each of the concerns Homeowners had and included an invoice for

over $58,000. Homeowners admitted that they did not pay the invoice. Indeed, they admitted that

they never made a single payment to Orion.

{¶38} In their respective depositions, Homeowners acknowledged that they never tried to

contact Orion following the responsive letter they received from its CEO. They agreed that Orion

later sent them a notice of its intent to file a mechanic’s lien on their property due to nonpayment.

Still, Homeowners did not contact Orion. Ms. Kaeka testified that someone from Orion also left

them a voicemail message, but they never returned the call. When Homeowners did not respond

to Orion’s letter, voicemail, or notice of intent, it filed its mechanic’s lien. Orion argued that

reasonable minds could only conclude it had a valid basis for doing so.

{¶39} Homeowners argued summary judgment was inappropriate because there were

genuine issues of material fact for trial. They argued there was a factual dispute as to whether

Orion had a legitimate lien or had falsely claimed it was owed over $58,000. According to

Homeowners, Orion billed them for work it knew it had not performed and materials it knew it

had not installed. For example, Ms. Kaeka averred in an affidavit that Orion had charged them for

the replacement of a rafter it had not actually replaced. She also testified in her deposition that

Orion had billed them for plywood subflooring but had then used a different, cheaper material.

Homeowners testified about damage their property sustained because Orion failed to properly 16

safeguard it from rain and moisture. It was their position that Orion was not entitled to any money

because the cost of redoing its work and remedying the damage it caused exceeded the amount it

claimed it was owed. Thus, they argued Orion lacked a legitimate basis to file a lien.

{¶40} The trial court found Orion was entitled to summary judgment because a dispute

over the specific amount of money it was owed would not invalidate its lien. The court relied on

the following proposition of law: “a mechanic’s lien in an amount in excess of the actual amount

due is not, for that reason, rendered invalid.”4 Tucker Const., Inc. v. Kitchen, 1995 WL 89431, *3

(9th Dist. Mar. 1, 1995), citing Thomas v. Huesman, 10 Ohio St. 152, 159 (1859). The court found

there was no dispute that Orion had purchased materials for Homeowners’ property, had performed

work there, and was never paid. Consequently, it found reasonable minds could only conclude

Orion had not made a false or malicious statement when it filed its lien.

{¶41} On appeal, Homeowners argue the trial court erred by awarding summary judgment

to Orion because there were genuine issues of fact for trial regarding the legitimacy of its lien.

They argue that Orion knew it was owed nothing but nonetheless filed its lien. According to

Homeowners, they produced evidence tending to show the lien was false and filed with malice or

reckless disregard for its falsity. Thus, they argue that a jury ought to have decided their

counterclaim for slander of title.

{¶42} Initially, we note that Homeowners have cited trial testimony in support of their

argument that the trial court erred by awarding Orion summary judgment. This Court cannot

consider that testimony. “‘Our review of a summary judgment is limited solely to that evidence

4 The trial court quoted Thompson Thrift Construction v. Lynn, 2017-Ohio-1530 (5th Dist.) for this proposition of law, but the quote does not appear in Thompson Thrift Construction. The quote appears in Tucker Construction, Inc., which the Thompson Court cited in its opinion. See Thompson Thrift Construction at ¶ 79. 17

that was before the trial court at the time of its decision.’” Schlegel v. Summit County, 2021-Ohio-

3451, ¶ 30 (9th Dist.), quoting Charleston v. Vernay Laboratories, Inc., 1989 WL 68412, *3 (2d

Dist. June 22, 1989). Because trial testimony was not available to the trial court at the time it

awarded summary judgment to Orion, it has no bearing on the trial court’s decision.

{¶43} Upon review, we cannot conclude the trial court erred when it awarded summary

judgment to Orion on the counterclaim for slander of title. The undisputed evidence showed that

Orion filed its lien after it purchased materials, performed work for Homeowners, responded in

writing to their concerns, complied with their request for an invoice, sent them a notice of intent

to file a lien, left them a voicemail message about the lien, and never received any response or

payments. Even if Homeowners ultimately felt Orion was not entitled to any money, there was no

evidence they communicated that fact to Orion before it filed its lien. They specifically asked

Orion to provide them with an invoice; an act that would be incongruous with a position that Orion

was owed nothing. After Orion responded to their request, Homeowners failed to initiate further

contact with Orion or respond to its attempts at communication. Viewing the evidence in a light

most favorable to Homeowners, no rational trier of fact could conclude that Orion acted in a false,

malicious, or reckless manner when it filed its mechanic’s lien. See Baker, 2000 WL 1783577, at

*5 (9th Dist.). Accordingly, the trial court did not err by awarding it summary judgment on

Homeowners’ claim for slander of title. Homeowners’ fourth assignment of error is overruled.

HOMEOWNERS’ ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING ORION’S MOTION IN LIMINE, EXCLUDING EVIDENCE, AND REFUSING TO SUBMIT CONSUMERS’ HOME SOLICITATION SALES ACT COUNTERCLAIM TO THE JURY.

{¶44} In their second assignment of error, Homeowners argue the trial court erred when

it granted Orion’s motion in limine and excluded evidence in support of their HSSA counterclaim. 18

Homeowners argue Orion’s motion was, in effect, a motion for summary judgment. They argue

the court ought to have denied the motion on procedural grounds. They also argue the court erred

by not submitting their counterclaim to the jury because it was valid on its merits. For the

following reasons, we reject their assignment of error.

{¶45} “[T]o demonstrate reversible error on appeal, an appellant has the burden to

demonstrate error as well as prejudice resulting from that error.” In re Estate of House, 2023-

Ohio-4348, ¶ 13 (9th Dist.). Errors are only prejudicial if they affect a litigant’s substantial rights.

See Civ.R. 61. Harmless errors or defects must be disregarded “at every stage of the proceeding .

. . .” Id.

{¶46} As previously noted, the trial court awarded Orion summary judgment on

Homeowners’ counterclaim for breach of the CSPA. It concluded that Orion and Homeowners

had engaged in a transaction involving a home construction service contract, not a consumer

transaction. We have already determined that the trial court did not err in its ruling. See Discussion

of Assignment of Error I, supra.

{¶47} Following the trial court’s summary judgment ruling, Orion filed a motion in

limine. It sought to exclude from trial any evidence or reference to a violation of the HSSA.

Although the trial court granted the motion in limine, it did so based on its prior summary judgment

ruling. It specifically found that its prior legal conclusion (i.e., that there had not been a “consumer

transaction”) rendered Homeowners’ counterclaim under the HSSA moot.

{¶48} Homeowners argue the trial court should have construed Orion’s motion in limine

as a motion for summary judgment. They argue the court should have denied the motion because

it was not supported by Civ.R. 56 evidence. They also argue that they presented a valid HSSA

counterclaim. According to Homeowners, the solicitation stage of their exchange with Orion could 19

still qualify as a consumer transaction, even if the work under contract did not. Homeowners insist

there was evidence of a HSSA violation, so the jury should have been instructed on that

counterclaim. Because Orion never moved for summary judgment or a directed verdict on that

counterclaim, Homeowners argue the trial court failed to resolve it.

{¶49} To the extent Homeowners argue the trial court failed to resolve their HSSA

counterclaim, the record does not support that conclusion. The record reflects that the court found

the counterclaim moot. It, therefore, expressly disposed of that counterclaim. Moreover, even if

the court should not have made its ruling in the context of a motion in limine, Homeowners have

not shown that its error affected their substantial rights. See Civ.R. 61.

{¶50} The HSSA is contained in Chapter 1345 of the Revised Code, meaning it falls

within the purview of the CSPA. See R.C. 1345.21 et seq. Indeed, this Court has held that “[a]

violation of the HSSA constitutes a violation of the CSPA.” Brunke v. Ohio State Home Servs.,

Inc., 2015-Ohio-2087, ¶ 17 (9th Dist.), citing R.C. 1345.28. The trial court determined, as a matter

of law, that the CSPA did not apply to the Contract. That determination led the court to conclude

that the HSSA counterclaim was moot. Homeowners have not explained how the court’s legal

determination would have changed had it considered Orion’s motion on other procedural grounds.

See App.R. 16(A)(7). Their position that the solicitation stage of their agreement with Orion was

still subject to the HSSA, and therefore the CSPA, is tenuous at best. The CSPA applies to all

stages of a consumer transaction, including the solicitation stage. See R.C. 1345.01. By definition,

a transaction involving a home construction service contract is not a “[c]onsumer transaction.” See

id. The legislature did not indicate that the CSPA still applies to the solicitation stage of a

transaction involving a home construction services contract. See id. Further, the HCSA sets forth

its own requirements for the contents of written contracts, prohibitions against certain conduct, 20

and remedies for violations of its provisions. See R.C. 4722.02, 4722.03, and 4722.08.

Homeowners have not shown that, had the trial court recast Orion’s motion as one for summary

judgment, the outcome of the proceedings would have been different. See Civ.R. 61. Accordingly,

their second assignment of error is overruled.

HOMEOWNERS’ ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING ORION’S MOTION IN LIMINE EXCLUDING EVIDENCE OF HOME CONSTRUCTION SERVICE SUPPLIERS ACT.

{¶51} In their third assignment of error, Homeowners argue the trial court erred when it

granted Orion’s motion in limine and excluded certain evidence in support of their HCSA

counterclaim. Homeowners argue Orion’s motion was, in effect, a motion for summary judgment.

According to Homeowners, Orion failed to present evidence in support of its motion. For the

{¶52} As previously noted, a reversible error is one for which an appellant has

demonstrated both error and resulting prejudice. In re Estate of House, 2023-Ohio-4348, at ¶ 13

(9th Dist.). Errors are only prejudicial if they affect a litigant’s substantial rights. See Civ.R. 61.

Harmless errors or defects must be disregarded “at every stage of the proceeding . . . .” Id.

{¶53} We begin with a brief recitation of the statutory provisions relating to Homeowners’

HCSA counterclaim. The HCSA defines a home construction service contract as one “between an

owner and a supplier to perform home construction services, including services rendered based on

a cost-plus contract, for an amount exceeding twenty-five thousand dollars.” R.C. 4722.01(C). It

requires home construction service contracts to be in writing. R.C. 4722.02(A) and 4722.03(A)(1).

Importantly, however, the HCSA treats cost-plus contracts differently than other home

construction service contracts. Home construction service contracts generally must comply with 21

the writing requirements set forth in R.C. 4722.02(A) and (B). They must include certain

information such as the seller’s contact details, a general description of the work to be performed,

the anticipated start and end dates, the total estimated cost of the service, and notice requirements

regarding excess costs. R.C. 4722.02(A) and (B). Yet, cost-plus contracts are not subject to those

requirements. The HCSA specifically exempts them from the writing requirements that apply to

other home construction service contracts. See R.C. 4722.02(C) and 4722.03(B). A cost-plus

contract is one “entered into between an owner and a home construction service supplier under

which payment to the supplier is based on the cost of a product plus the supplier’s rate for labor to

install the product plus an agreed percentage of profit or a stipulated fee.” R.C. 4722.01(A).

{¶54} When Orion moved for summary judgment on Homeowners’ counterclaim under

the CSPA, it argued that the Contract was a transaction for home construction services, not a

consumer transaction. Homeowners filed a brief in opposition. In doing so, they included an

argument that the Contract was not one for home construction services because it did not comply

with the HCSA’s writing requirements (i.e., those contained in R.C. 4722.02(A)). Homeowners

also argued that the Contract was not exempt from those requirements because it was not a cost-

plus contract. Orion replied to Homeowners’ brief in opposition. Its reply included arguments

and evidence as to why the Contract was, in fact, a cost-plus contract under the HCSA. When the

trial court issued its summary judgment ruling in favor of Orion on the CSPA counterclaim, it

included a finding that the Contract was a cost-plus contract. It also specifically found that the

writing requirements set forth in R.C. 4722.02(A) did not apply because the Contract was a cost-

plus contract.

{¶55} Following the trial court’s summary judgment ruling, Orion filed a motion in

limine. It sought to exclude evidence of any alleged violations of R.C. 4722.02(A), 4722.02(B), 22

and 4722.03 to the extent the latter required written notifications regarding excess costs. Orion

argued that none of those writing requirements applied because the Contract was a cost-plus

contract. It relied on the trial court’s prior summary judgment ruling to that effect. The trial court

agreed with that assertion based on its prior ruling. It, therefore, granted the motion in limine and

refused to submit that portion of Homeowners’ HCSA counterclaim to the jury. The court only

allowed the jury to decide whether Orion had violated other aspects of the HCSA.

{¶56} Homeowners argue the trial court erred when it granted Orion’s motion in limine.

They argue the motion was tantamount to a motion for summary judgment. According to

Homeowners, the trial court should have denied the motion because it was not supported by

evidence. They argue that the evidence showed the Contract was not a cost-plus contract.

{¶57} Upon review, we must conclude Homeowners’ argument fails for several reasons.

First, a portion of their argument directs this Court to refer to an argument set forth in a different

assignment of error. This Court has repeatedly held that an appellant “cannot ‘incorporate the

arguments contained in the other assignments of error to support a different assignment of error.’”

State v. Calhoun, 2021-Ohio-1713, ¶ 24 (9th Dist.), quoting State, ex rel. Midview Local School

Dist. Bd. of Edn. v. Ohio School Facilities Comm., 2017-Ohio-6928, ¶ 29 (9th Dist.). Second,

even if the trial court ought to have recast Orion’s motion in limine as one for summary judgment,

Homeowners have not explained how its failure to do so affected their substantial rights. See

Civ.R. 61. The trial court determined, as a matter of law, that the parties had a cost-plus contract.

It made that determination at the summary judgment stage upon consideration of the evidence

presented therein. Indeed, it was Homeowners who brought that issue to the attention of the court

at the summary judgment stage. Homeowners have not explained how the court’s legal

determination would have changed had it construed Orion’s motion in limine as another motion 23

for summary judgment. Finally, and relatedly, to the extent Homeowners argue that Orion’s

motion lacked merit because the parties did not have a cost-plus contract, the evidence they cite

was introduced at trial. This Court cannot consider that evidence as it was not before the trial court

at the time it made its ruling. See Schlegel, 2021-Ohio-3451, at ¶ 30 (9th Dist.). For the foregoing

reasons, Homeowners’ third assignment of error is overruled.

ORION’S ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE THAT THE DAMAGES ALLEGEDLY SUSTAINED BY [HOMEOWNERS] AS A RESULT OF [ORION]’S BREACH OF CONTRACT WERE FULLY PAID FOR BY THE INSURANCE PROCEEDS RECEIVCE (sic) BY [HOMEOWNERS.]

{¶58} In its first assignment of error, Orion argues the trial court erred when it excluded

evidence of the insurance proceeds Homeowners received. For the following reasons, we reject

its assignment of error.

{¶59} “The decision to admit or exclude evidence lies in the sound discretion of the trial

court. Absent an issue of law, this Court, therefore, reviews the trial court’s decision regarding

evidentiary matters under an abuse of discretion standard of review.” Wells v. Wells, 2012-Ohio-

1392, ¶ 42 (9th Dist.), quoting Jones v. Jones, 2011-Ohio-4393, ¶ 7 (9th Dist.). The term abuse of

discretion is used to indicate that the trial court’s attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶60} A trial court may exclude relevant evidence “if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Evid.R. 403(A). “[T]he exclusion of relevant evidence under Evid.R. 403(A) is even more of a

judgment call than determining whether the evidence has logical relevance in the first place.”

Chambers v. Lee, 2014-Ohio-4651, ¶ 6 (9th Dist.), quoting State v. Yarbrough, 2002-Ohio-2126,

¶ 40. 24

{¶61} Homeowners filed a motion in limine, seeking to exclude any argument or mention

of insurance benefits or payments they received to repair their home. They argued that evidence

was irrelevant, unduly prejudicial, and likely to confuse the jury. Orion responded in opposition.

It argued the insurance evidence was relevant to Homeowners’ counterclaim for breach of contract.

It argued the evidence would show Homeowners had not sustained actual damages because their

insurance payments had prevented them from incurring any out-of-pocket expenses. Upon review,

the trial court rejected Orion’s argument. The court found that Homeowners’ damages were not

limited to the amount they paid out of pocket. It found the insurance evidence would be unduly

prejudicial if offered to prove they had not suffered damages. Accordingly, it granted the motion

in limine.

{¶62} At the conclusion of trial, the trial court instructed the jury that, if Homeowners

prevailed on their counterclaim for breach of contract, they were “entitled to damages in the

amount sufficient to place them in the same position in which they would have been if the contract

had been fully performed . . . to the extent that the damages [were] reasonably certain and

reasonably foreseeable.” The court instructed the jury that they could award damages that were

the natural and probable result of the breach. It also instructed the jury that they could award

damages for the loss of use of the property for an eleven-month period due to the breach. The

court defined loss of use as “the reasonable value of the use of [the] property during the period

reasonably necessary for making repairs or restoring it to a usable condition.” Finally, the court

instructed the jury that Homeowners could recover damages for serious emotional distress. The

trial court specifically instructed the jury that, “in determining damages for either party, you may

not consider whether insurance paid for any alleged damages sustained by either party.” 25

{¶63} The jury ultimately awarded Homeowners $118,848.37 in damages for their breach

of contract counterclaim. The court asked the jury to complete an interrogatory regarding that

damage award. It asked the jury to identify how much of that award represented damages for

serious emotional distress. The jurors indicated that $0 of the award represented damages for

serious emotional distress. No additional interrogatories for the damage award were submitted.

{¶64} Following the verdict, Orion requested a setoff hearing. It argued that the damages

the jury had awarded on the breach of contract counterclaim had already been paid by

Homeowners’ insurance. Orion also expressed its intention to move for judgment notwithstanding

the verdict on that basis. The court set a briefing schedule. Orion then filed a motion for judgment

notwithstanding the verdict, or in the alternative, a motion for a new trial. Homeowners filed a

reply.

{¶65} Upon review, the trial court denied Orion’s motion. Relevant to this appeal, it

found Orion’s arguments speculative and lacking in evidentiary support. The court noted that

Homeowners had sought to recover for more than just the amount it had cost to repair their home.

They also had sought damages for the loss of use of the property, the fact that they had to postpone

their plans to start a family, expenses they incurred from travel and renting an apartment, and

expenses they incurred boarding their pets. The court noted that Orion had not asked to submit

any interrogatories to itemize the jury’s damages award. The only information known about the

award was that it did not include damages for serious emotional distress. The court declined to

speculate as to the grounds for the award. It also found that Orion had failed to proffer evidence

of the insurance payments at trial. Without that evidence, the court reasoned, it was unable to

determine how much insurance money Homeowners received and whether that money had made 26

them “whole” with regard to all the damages they claimed. The court concluded that Orion had

not shown it was entitled to judgment notwithstanding the verdict, a new trial, or a set-off.

{¶66} Orion argues the trial court abused its discretion when it refused to allow it to

introduce evidence about the insurance proceeds. Orion argues the insurance payments were

highly relevant and, despite the trial court’s preliminary ruling, Homeowners opened the door to

that evidence when one of them testified about their insurance adjuster. It argues that the insurance

evidence was not barred by the collateral source rule because that rule only applies in tort actions.

It further argues that the reason it did not proffer that evidence at trial was that the trial court

specifically said it could raise the argument in a motion for judgment notwithstanding the verdict.

According to Orion, the court’s ruling allowed Homeowners to receive a windfall.

{¶67} Even if this Court were to assume that the trial court erred by excluding the

insurance evidence and that Orion did not have to proffer the evidence at trial, Orion has not shown

that the court’s error prejudiced its substantial rights. See Civ.R. 61. The jury was only asked to

complete one interrogatory related to its damage award. The only information to be gleaned from

that interrogatory was that the award was not attributable to severe emotional distress. Orion did

not request any additional interrogatories to test that award. Because it did not do so, “the

breakdown of the damages offered by [Orion] is speculative . . . .” Black v. Stouffer Realty, Inc.,

2013-Ohio-5723, ¶ 14 (9th Dist.). The jury heard evidence about the cost of repairing

Homeowners’ property. Yet, they also heard evidence that Homeowners lost the use of their

property for a substantial period of time, postponed long-term plans, incurred costs related to travel

and lodging and the boarding of their pets, and underwent substantial inconvenience. It is

impossible to know what portion of the jury’s award, if any, was attributable solely to the repair

cost. “In the absence of interrogatories, an appellate court may not overturn a jury’s damage award 27

unless it is apparent from the record that the award was the result of passion or prejudice.” Id.

Upon review, we cannot conclude that passion or prejudice is evident from the record. Orion has

not shown that, had the jury been permitted to consider the insurance payments in awarding

damages, the result of the proceedings would have been different. See Civ.R. 61. Accordingly,

its first assignment of error is overruled.

ORION’S ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY EXCLUDING [ORION]’S EXPERT WITNESS’ DEMONSTRATIVE EXHIBITS DETAILING THE ROOF PITCH OF [HOMEOWNERS’] RESIDENCE AND ITS CALCULATION[.]

{¶68} In its second assignment of error, Orion argues the trial court abused its discretion

when it refused to admit four demonstrative exhibits used by Orion’s expert at trial. For the

following reasons, we reject its argument.

{¶69} “The decision to admit or exclude evidence lies in the sound discretion of the trial

court. Absent an issue of law, this Court, therefore, reviews the trial court’s decision regarding

evidentiary matters under an abuse of discretion standard of review.” Wells, 2012-Ohio-1392, at

¶ 42 (9th Dist.), quoting Jones, 2011-Ohio-4393, at ¶ 7 (9th Dist.). The term abuse of discretion

is used to indicate that the trial court’s attitude was unreasonable, arbitrary or unconscionable.

Blakemore, 5 Ohio St.3d at 219.

{¶70} A hotly contested issue at trial was whether Orion properly calculated the slope of

the roof in Homeowners’ family room. The roof was destroyed by the tree that fell during the

storm such that only portions of the outside trusses and broken pieces of the other trusses remained.

William Shirkey, the director of estimates at Orion, testified that Orion used satellite imagery

software to generate measurements for the missing roof and create an initial repair estimate. That

software and the initial repair estimate had the interior trusses for the roof at 6/12 slope. Mr. 28

Shirkey also testified, however, that slope must be confirmed by an outside source. He testified

that Orion consulted with a representative from a truss company and hired an architect to create

blueprints. He testified that both the representative and the architect found the 6/12 slope

measurement was incorrect.

{¶71} Jeff Barber testified as the architect Orion retained. He testified that he performed

field measurements and reviewed listing pictures that were posted on the internet before the house

sold. Mr. Barber believed the interior trusses for the roof were a 3.5/12 slope. He was adamant

that the original trusses could not have been a 6/12 slope. He explained that a 6/12 slope would

result in a far steeper ceiling than the original ceiling. He confirmed that the listing pictures were

consistent with a 3.5/12 slope not a 6/12 slope. Nevertheless, he acknowledged that he had been

unable to perform field measurements on the interior trusses because they had been destroyed by

the tree.

{¶72} Yvette Oswalt testified as the truss company representative. She took

measurements at the scene but testified that she was hindered by the fact that Orion had already

demolished the back wall of the family room and removed debris. She was able to measure an

outside truss from a remanent she found at the scene but not an inside truss. She testified that she

ultimately used a 3.5/12 slope for the interior trusses to be consistent with the architectural plans.

She agreed that the difference between a 3/12 slope and a 6/12 slope would be significant.

{¶73} Homeowners introduced listing pictures of the original family room through their

realtor. The pictures showed a high cathedral ceiling, but the realtor acknowledged that listing

pictures can be misleading due to wide-angle lenses distorting the angles and shape of a room. She

testified that she did not know what the actual slope of the trusses had been before they were

destroyed. Nevertheless, she saw the family room ceiling in person before it was destroyed. It 29

was her opinion that the height of the replacement ceiling Orion installed did not match the height

of the original ceiling.

{¶74} Homeowners also testified that the height of the ceiling Orion installed did not

match the height of the original ceiling. They emphasized that the height of the original ceiling

was a key feature in their decision to purchase the home. According to Homeowners, the ceiling

Orion installed was noticeably lower than the original ceiling. They testified that they had a second

company replace the roof that Orion installed. That company used a 6/12 slope for the interior

trusses. Homeowners testified that the new ceiling with the 6/12 slope looked the same as the

original ceiling.

{¶75} Both Homeowners and Orion presented expert testimony. Brian Reader testified

for Homeowners as an expert in architecture. He testified that he reviewed pictures of the house

before and after it was damaged. He also visited the house after Homeowners had a new company

tear down Orion’s roof and install a roof with a 6/12 interior slope. Mr. Reader testified that

pictures may distort an image, particularly if taken from an angle. Nevertheless, he testified that

he was able to rely on certain pictures of the house to generate the original slope. Older pictures

of the house allowed Mr. Reader to count the rows of siding on the home, estimate the height of

each row, and calculate the height of the roof. Additionally, pictures of the original and

replacement king posts allowed him to compare the two. Mr. Reader testified that a king post is

the center post in a truss. He was shown a picture of the king post from an original, broken truss

and a picture of the king post Orion used in its replacement. He testified that the original king post

was much longer, which would have resulted in a steeper slope. He estimated that the original

slope was about 5/12. 30

{¶76} Stephanie Osterholt, a senior forensic civil structural engineer, testified as an expert

for Orion. She testified that she never uses satellite imagery software to calculate roofing angles

because field measurements are superior. Before forming an opinion on this matter, she reviewed

photographs of the house, the handwritten measurements from Orion’s architect (Mr. Barber), the

measurements performed by the truss company representative (Ms. Oswalt), and other expert

reports. It was her opinion that the slope of the original interior trusses was between 3.5/12 and

4.5/12. She testified that the original slope was never 6/12. Relevant to this appeal, she testified

about Exhibits 47, 49, 50, and 51.

{¶77} Exhibit 47 was described as a summary of Ms. Osterholt’s calculations and the

steps she took to arrive at those calculations. It included the measurements taken by Mr. Barber

and Ms. Oswalt. The trial court allowed Orion to introduce the exhibit and argue it to the jury over

objection. Yet, the court refused to admit the exhibit at the conclusion of trial. It concluded that

the exhibit was essentially part of Ms. Osterholt’s expert report. Accordingly, it found the exhibit

was not subject to admission.

{¶78} Exhibit 49 was described as a photograph of the back of the house. It included text

boxes with commentary from Ms. Osterholt. The text explained how she made her measurements

of various areas. The same photograph of the back of the house was admitted as a different exhibit

without the text boxes. The trial court excluded Exhibit 49 based on its inclusion of Ms.

Osterholt’s commentary.

{¶79} Exhibit 50 was described as a hand sketch that Mr. Barber created when he visited

the house to take measurements. It included text boxes with commentary from Ms. Osterholt. The

court refused to submit the exhibit to the jury due to the inclusion of the text boxes. 31

{¶80} Exhibit 51 was described as a series of three Google Earth images. They showed

photos of Homeowners’ house before the tree fell, after Orion replaced the roof, and after a second

company replaced the roof again. The exhibit included colored lines drawn by Ms. Osterholt,

drawing attention to the angle of the roof in each photo. The trial court refused to submit the

exhibit to the jury due to the additions Ms. Osterholt had made to each image.

{¶81} Orion argues the trial court abused its discretion when it refused to admit Exhibits

47, 49, 50, and 51. It argues those exhibits were “central” to its defense because they simplified

the complex technical testimony Ms. Osterholt offered on slope. According to Orion, the jury

believed at least one of those exhibits was of paramount importance because it asked to see Exhibit

51 during deliberations. Orion argues it was prejudiced by the exclusion of the exhibits because,

after the court allowed their introduction over objection, Orion assumed the court would admit

them. It claims its faulty assumption led it to condense Ms. Osterholt’s testimony. Orion argues

that, had it known the exhibits would be excluded, it would have questioned Ms. Osterholt far

more extensively.

{¶82} Initially, we note that Exhibits 47, 49, 50, and 51 are not in the appellate record.

Homeowners urge this Court to reject Orion’s assignment of error on that basis. Yet, error may

be predicated upon a ruling to exclude evidence so long as the exclusion affected a substantial

right and “the substance of the evidence was made known to the court by offer or was apparent

from the context within which questions were asked.” Evid.R. 103(A)(2). Exhibits 47, 49, 50,

and 51 were introduced through testimony at trial, described therein, and discussed when Orion

sought to admit them. Their substance is evident from the record, as is the trial court’s basis for

excluding them. Under these facts and circumstances, we must conclude that Orion has preserved

its arguments for review. 32

{¶83} This Court finds no merit in Orion’s assertion that a question from the jury serves

as evidence of the paramount importance of at least one of its excluded exhibits. Even assuming

a jury question could be used as evidence to test its verdict, but see Evid.R. 606(B), the record

contains no evidence that the jury asked such a question. No questions were filed as part of the

docket. Orion did not provide a transcript citation for the question it claims was asked. See App.R.

16(D). Further, this Court’s independent review of the record has not revealed the existence of a

question from the jury. Because Orion’s assertion lacks evidentiary support, we reject it on that

basis.

{¶84} Upon review, we need not determine whether the trial court abused its discretion

by excluding Exhibits 47, 49, 50, and 51. That is because, even if the court erred by excluding the

exhibits, Orion has not demonstrated resulting prejudice. See Civ.R. 61. Orion’s argument that it

was prejudiced by the exclusion of the exhibits is wholly speculative. See In re X.H., 2022-Ohio-

779, ¶ 9 (9th Dist.), quoting In re A.M., 2012-Ohio-1024, ¶ 21 (9th Dist.) (entirely speculative

arguments do not establish actual prejudice). The jury heard Ms. Osterholt give detailed testimony

as to why she felt the correct slope of the original interior trusses was between 3.5/12 and 4.5/12.

They were shown the exhibits at issue during her testimony. Ms. Osterholt led them through the

measurements and visual representations she considered in forming her opinion. They heard her

explain why the original slope could not have been a 6/12 slope. Her testimony was consistent

with the testimony of Orion’s architect (Mr. Barber) and, to at least some extent, the truss company

representative (Ms. Oswalt). On the other hand, Homeowners’ expert offered a different opinion.

He gave detailed testimony as to why he felt the correct slope of the original interior trusses was

about 5/12. Homeowners bolstered that testimony by offering their own opinions about the height

differences in the roofs as well as the opinion of their realtor. The jury also was given pictures of 33

the house before the damage occurred and after its repair and pictures of the original and

replacement king posts. The jury had a wealth of evidence before it and was tasked with deciding

which of two diametrically opposed positions was correct. This Court is not convinced the jury

would have reached a different result had it been able to examine Ms. Osterholt’s exhibits during

deliberations or had it heard additional testimony from her. There is no evidence that the jury

rejected her opinion because they did not understand it. Orion’s argument to that effect amounts

to pure speculation. It has not shown that the exclusion of Exhibits 47, 49, 50, and 51 affected the

outcome in this matter. Accordingly, Orion’s second assignment of error is overruled.

ORION’S ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY DENYING [ORION]’S MOTION FOR DIRECTED VERDICT ON [HOMEOWNERS’] BREACH OF CONTRACT CLAIM BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO PROVE THAT [HOMEOWNERS] SUBSTANTIALLY PERFORM[ED] THEIR PAYMENT OBLIGATIONS PURSUANT TO THE CONTRACT[.]

{¶85} In its third assignment of error, Orion argues the trial court erred by denying its

motion for directed verdict on Homeowners’ counterclaim for breach of contract. We do not agree.

{¶86} “A motion for a directed verdict assesses the sufficiency of the evidence. . . .” Kane

v. O’Day, 2007-Ohio-702, ¶ 18 (9th Dist.). It requires the trial court to construe the evidence most

strongly in favor of the nonmoving party and decide whether “reasonable minds could come to but

one conclusion upon the evidence submitted . . . .” Civ.R. 50(A)(4). If the nonmoving party “fails

to present evidence on one or more essential elements of a claim, a directed verdict is proper.”

Alonso v. Thomas, 2021-Ohio-341, ¶ 53 (9th Dist.). “An appellate court reviews a trial court’s

ruling on a motion for a directed verdict de novo, as it presents an appellate court with a question

of law.” Kane at ¶ 18. 34

{¶87} “The elements for claim for breach of contract include the existence of a contract,

performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.”

Skycasters, LLC v. Kister, 2021-Ohio-4154, ¶ 42 (9th Dist.). “The doctrine of wrongful prevention

of performance may be invoked to excuse the performance of a contractual obligation in a case

where a party to the agreement has, in some manner, actively hindered or impeded the attainment

of a material part of the bargain.” Carter v. University Park Dev. Corp., 2022-Ohio-3462, ¶ 52

(9th Dist.).

{¶88} The Contract called for Homeowners to be responsible for their insurance

deductible and make three payments to Orion. The first payment was due upon commencement

of the job, the second was due at the midpoint of the job, and the third was due upon substantial

completion of the job. It is undisputed that Homeowners never paid Orion any money.

{¶89} Maureen Gentile, the president of Orion, testified that Homeowners chose not to

sign an authorization for release of mortgage company information. That release would have

allowed Orion to work directly with Homeowners’ mortgage company to secure any payments

from their insurance. Ms. Gentile testified that, without the release, “we can’t talk to the mortgage

company.” Instead, Orion had to rely on Homeowners to communicate with their mortgage

company and ensure Orion received its payments.

{¶90} Homeowners acknowledged that their insurance company issued them a check.

However, the check included their mortgage company as a payee. Ms. Kaeka testified that the

mortgage company required certain information from Orion before it would agree to release the

insurance funds. She testified that she emailed Orion’s office manager to request the documents

the mortgage company needed for Orion’s payments. According to Ms. Kaeka, she never received

a response from the office manager. She was never copied on any email to the mortgage company, 35

and the mortgage company never informed her that it had received the required documents. She

testified that she even tried to follow up with the office manager to ask if the required documents

had been sent, but the office manager never responded.

{¶91} Ms. Gentile acknowledged that there are certain documents a mortgage company

must receive before it can release funds. She also acknowledged that some of those documents

would have been entirely within the control of Orion. She testified that she shared an email address

with her office manager and was not aware that Homeowners had made any requests for the

required documents. Yet, the office manager offered conflicting testimony. The office manager

testified that she received an email from Homeowners, asking Orion to provide the required

documents. She testified that she emailed the requested documents directly to the mortgage

company. Although copies of other email exchanges were introduced into evidence, Orion did not

introduce a copy of any email from the office manager to the mortgage company. Further, the

office manager acknowledged that, because Homeowners had not signed an authorization for

release of information, Orion and the mortgage company were not to have direct communication.

{¶92} Orion moved for a directed verdict on Homeowners’ counterclaim for breach of

contract. It argued that Homeowners had not proven their own performance under the Contract.

Orion pointed to evidence that Homeowners had failed to adhere to the payment schedule set forth

in the Contract. Homeowners acknowledged that they had not paid Orion but argued that Orion

had prevented their performance. They argued that Orion had not provided them with the

documents their mortgage company needed to release funds from the insurance company. The

trial court found there was a material dispute and sufficient evidence existed for the counterclaim

to be tried to the jury. Consequently, it denied Orion’s motion. When the trial court instructed the

jury, it included an instruction on the affirmative defense of prevention of performance. It 36

instructed the jury to find in favor of Homeowners if it determined that they failed to perform

under the Contract because Orion “prevented them from completing the documentation to the

mortgage company to allow release of payment.”

{¶93} On appeal, Orion maintains that it was entitled to a directed verdict because

Homeowners failed to prove their own performance under the Contract. It cites the Contract’s

payment schedule, Homeowners’ refusal to sign an authorization for release of mortgage company

information, and their failure to make a single payment. Orion did not address prevention of

performance in its initial appellate brief. It included an argument about that defense in its reply

brief after Homeowners raised it in their responsive brief. Orion argues that any claim it failed to

provide information to the mortgage company was directly contrary to the testimony of its office

manager. According to Orion, the office manager testified that she sent the information to the

mortgage company, and Homeowners never produced evidence to the contrary. Thus, it argues

there was no evidence that Orion prevented Homeowners’ performance.

{¶94} Construing the evidence most strongly in favor of Homeowners, reasonable minds

could come to different conclusions about the evidence submitted at trial. See Civ.R. 50(A)(4).

Orion’s office manager acknowledged that Homeowners had requested documentation for their

mortgage company. It was her testimony that she sent the information directly to the mortgage

company. Yet, Ms. Kaeka testified that the mortgage company never informed her it had received

the information. She also testified that she received no response from the office manager on the

two occasions she reached out to ask for the required documentation. Her testimony constituted

evidence that Orion never produced that documentation. The weight of that evidence was not a

matter the trial court could consider in ruling on Orion’s motion for directed verdict. See Ulrich

v. Mercedes-Benz USA, L.L.C., 2010-Ohio-348, ¶ 6 (9th Dist.), quoting Kane, 2007-Ohio-702, at 37

¶ 18 (9th Dist.) (“A motion for a directed verdict assesses the sufficiency of the evidence, not the

weight of the evidence or the credibility of the witnesses.”). The jury, if it chose to believe Ms.

Kaeka’s evidence, could have concluded that Orion impeded Homeowners’ ability to perform

under the Contract. See Carter, 2022-Ohio-3462, at ¶ 52 (9th Dist.). Orion has not shown that the

trial court erred by denying its motion for directed verdict. Accordingly, its third assignment of

error is overruled.

III.

{¶95} Orion’s assignments of error are overruled. Homeowners’ assignments of error on

cross-appeal are also overruled. The judgment of the Summit County Court of Common Pleas is

affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30. 38

Costs taxed equally to both parties.

JILL FLAGG LANZINGER FOR THE COURT

STEVENSON, J. CONCURS.

CARR, J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶96} I respectfully dissent from the majority’s judgment to the extent that it concludes

that the trial court properly awarded summary judgment to Orion on Homeowners’ CSPA

counterclaim. I would conclude, that given the timeframe of the Contract, it fell within the CSPA

and not the HCSSA, as it was a consumer transaction and not a home construction service, as the

definition of home construction service did not include remodeling at the time. See Estate of

Tomlinson v. Mega Pool Warehouse, Inc., 2023-Ohio-229, ¶ 22-25 (5th Dist.), rev’d on other

grounds, 2024-Ohio-1065, and Beder v. Cerha Kitchen and Bath Design Studio, LLC, 2022-Ohio-

4463, ¶ 7-18 (11th Dist.). In my view, the recent change to R.C. 4722.01(B) to clearly include

remodeling within the definition of home construction service was made in order to alter the

existing law, not to more clearly set forth the legislature’s original intent; this is so, because prior

to the change, all appellate courts which had addressed the issue had concluded that home

construction service did not include remodeling. Thus, prior to the change, the existing law was

that home construction service did not include remodeling and thus remodels fell within the CSPA.

See Estate of Tomlinson at ¶ 22-25; Beder at ¶ 7-18. 39

APPEARANCES:

RONALD A. SKINGLE, Attorney at Law, for Appellant/Cross-Appellee.

LAURA K. MCDOWALL, Attorney at Law, for Appellees/Cross-Appellants.

SENECA KONTURAS, Attorney at Law, for Appellees/Cross-Appellants.