Provolish v. DeCioccio Showroom, Inc.

2025 Ohio 5253

• Court: Ohio Court of Appeals
• Decided: November 21, 2025
• Docket: C-250047
• Status: Published

Opinion

[Cite as Provolish v. DeCioccio Showroom, Inc., 2025-Ohio-5253.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

THOMASINE PROVOLISH, : APPEAL NO. C-250047 TRIAL NO. 24CV19040 Plaintiff-Appellant, :

vs. : JUDGMENT ENTRY DECIOCCO SHOWROOM, INC., :

Defendant-Appellee. :

This cause was heard upon the appeal, the record, and the briefs. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is affirmed. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 11/21/2025 per order of the court.

By:_______________________ Administrative Judge [Cite as Provolish v. DeCioccio Showroom, Inc., 2025-Ohio-5253.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

THOMASINE PROVOLISH, : APPEAL NO. C-250047 TRIAL NO. 24CV19040 Plaintiff-Appellant, :

vs. : OPINION DECIOCCO SHOWROOM, INC., :

Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 21, 2025

Thomasine Provolish, pro se,

Glennon Law Firm LLC and Austin R. Howard, for Defendant-Appellee. [Cite as Provolish v. DeCioccio Showroom, Inc., 2025-Ohio-5253.]

CROUSE, Presiding Judge.

{¶1} When plaintiff-appellant Thomasine Provolish received the custom

chairs she had purchased through defendant-appellee DeCiocco Showroom, Inc.,

(“DeCiocco”) something about them didn’t sit quite right with her. She sued DeCiocco,

asserting that her chairs were much deeper than was specified in her contract with

DeCiocco, and a magistrate ruled in her favor. The trial court, however, rejected the

magistrate’s decision and went the other way, ruling that the chairs conformed to the

terms of the parties’ contract, as those terms were used in the trade. Because our

review reveals no error in that determination, we affirm.

I. BACKGROUND

{¶2} In February 2023, Provolish ordered several pieces of custom furniture

from DeCiocco, including two custom chairs. Both parties introduced copies of a

document labeled “Acknowledgment / Invoice,” which memorialized the details of

their transaction (“the acknowledgment”).

{¶3} The acknowledgment specified that the chairs were to be manufactured

by Stewart Furniture (“Stewart”) and would be “[s]imilar to concept photo supplied of

Temple Furniture #15935 Fletcher Chair (based on Stewart’s interpretation of the

design).” (The reference image of the Fletcher chair was also introduced into

evidence.) The acknowledgment listed numerous dimensions for these custom chairs,

including a “depth” of 38 inches and a “seat depth” of approximately 19 inches. The

order also included one custom, “24[-inch] Square” pillow for each chair, like the one

pictured with the Fletcher chair. The acknowledgment clarified that the actual

measurements might vary by “+/- up to 1[ inch]” from those provided. It included no

definition of “seat depth,” and did not specify the thickness of either the pillows or the

chair’s seat back. OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} When Provolish received her chairs seven months later, she discovered

that the distance from the front edge of the seat cushion to each chair’s seatback was

approximately 29 inches. Believing this to be a deeper seat than she had ordered,

Provolish reached out to Stewart, who told her to return the chairs. After measuring

the chairs, Stewart informed Provolish they were within specifications. Stewart

explained that they measure “seat depth” from the front edge of the seat cushion to the

face of the back pillow or cushion, rather than to the seatback (as Provolish had), and

that their pillows were made to a 9-inch thickness. Thus, the “seat depth,” as Stewart

measured it, was 20 inches (the 29 inches to seatback, less the 9-inch pillow), within

an inch of the requested 19-inch seat depth.

{¶5} Provolish nevertheless continued to assert that the chairs were not what

she had ordered. DeCiocco offered to have Stewart remake the pieces and sell them to

Provolish at cost, but Provolish declined this offer.

{¶6} Provolish then filed a complaint against DeCiocco in the small-claims

division of the Hamilton County Municipal Court, where a hearing was held before a

magistrate. After the hearing, the magistrate rendered a decision for Provolish in the

amount of $5,999.

{¶7} DeCiocco objected to the magistrate’s decision, arguing that (1)

DeCiocco’s contract had been with Provolish’s since-dissolved LLC, not Provolish

herself, and (2) the chairs had conformed to the specifications in the contract. The trial

court sustained that second objection and declined to reach the first. The court then

rejected the magistrate’s decision and entered judgment in favor of DeCiocco, from

which Provolish now appeals.

II. DECIOCCO’S LATE-FILED BRIEF

{¶8} Before addressing the merits of Provolish’s appeal, we first consider her

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argument that this court should strike DeCiocco’s brief as untimely filed.

{¶9} On May 7, this court’s magistrate accepted a late-filed brief from

DeCiocco pursuant to Loc.R. 14(F). In her reply brief, Provolish nevertheless contends

that DeCiocco’s “arguments should be stricken in their entirety” because its brief was

untimely. Because this court’s magistrate already issued an order accepting DeCiocco’s

brief, we construe Provolish’s challenge as a request to set aside the magistrate’s order.

{¶10} An appellate court refers matters to a magistrate pursuant to App.R. 34,

which incorporates the rules governing magistrate proceedings from Civ.R. 53. Under

this latter rule, a “magistrate may enter orders without judicial approval if necessary

to regulate the proceedings and if not dispositive of a claim or defense,” subject to the

terms of the relevant order referring the matter to the magistrate. Civ.R.

53(D)(2)(a)(i). This court’s standing order of reference expressly “empower[s] and

authorize[s]” its magistrates “to rule on” certain classes of “routine procedural

motions,” including “[m]otions to extend deadlines for briefs, record, motion

response, show cause, or to comply with any other order or rule of this Court.” In re

Amended Order of Reference, No. M-230005 (1st Dist. Aug. 8, 2023). The order in

this case fell squarely within the scope of that reference, and so could be entered

without judicial approval.

{¶11} If Provolish wished this court to set aside the magistrate’s order, she had

to file a timely and separate motion requesting the court do so, not simply refer to the

issue in her brief. Unlike a magistrate’s final decision, which is effective only once

adopted by the referring court, Civ.R. 53(D)(4)(a), a magistrate’s order on a

nondispositive matter is effective and binding unless stayed or set aside by the

referring court. See Civ.R. 53(D)(2). A party who wishes to challenge a magistrate’s

nondispositive order must “file a motion with the court to set aside a magistrate’s

5 OHIO FIRST DISTRICT COURT OF APPEALS

order” within ten days of the order’s filing. (Emphasis added.) Civ.R. 53(D)(2)(b). A

“motion” is a particular “form” of application to an appellate court, App.R. 15(A),

distinct from a brief. Compare App.R. 15 and 19(B), and Loc.R. 15 and 19(A), with

App.R. 16 and 19(A), and Loc.R. 16, 19(B), and 19(C).

{¶12} Provolish failed to properly challenge the magistrate’s order because she

only raised her issue with the magistrate’s order in her reply brief; she never “file[d] a

motion with the court” seeking to set it aside. See Civ.R. 53(D)(2)(b). Because she

never properly asked us to set it aside, that order is just as valid and effective as any

issued by this court. DeCiocco’s brief was validly accepted under Loc.R. 14(F).

III. BREACH-OF-CONTRACT CLAIM

{¶13} Provolish challenges the trial court’s ruling sustaining DeCiocco’s

objections to the magistrate’s decision and entering judgment for DeCiocco. In two

assignments of error, she argues that the trial court erred by (1) concluding that the

chairs she received conformed to the parties’ contract, and (2) accepting

measurements provided by DeCiocco. DeCiocco contests both points and argues that,

in any event, this court can affirm the judgment on the ground that Provolish’s now-

dissolved LLC (not Provolish herself) was a party to the contract.

{¶14} We review the trial court’s decision not to adopt a magistrate’s finding,

conclusion, or decision for an abuse of discretion. See Ditech Fin., L.L.C. v.

Balimunkwe, 2025-Ohio-4884, ¶ 23 (1st Dist.), citing In re Estate of Knowlton,

2006-Ohio-4905, ¶ 43 (1st Dist.). But we review the trial court’s own findings and

conclusions as we would in any other case. See id. at ¶ 24. Thus, we consider legal

questions de novo, while reviewing the trial court’s factual findings to determine if

they were against the manifest weight of the evidence. See Washington v. Am. Gen.

Life Ins. Co., 2022-Ohio-339, ¶ 13 (1st Dist.); Maddali v. Haverkamp,

6 OHIO FIRST DISTRICT COURT OF APPEALS

2022-Ohio-3826, ¶ 17-18 (1st Dist.). On a manifest-weight review, this court considers

the record and weighs the evidence and witness credibility to ensure that the trial court

did not lose its way in resolving evidentiary conflicts and create a manifest miscarriage

of justice necessitating a new trial. Maddali at ¶ 18, citing Eastley v. Volkman,

2012-Ohio-2179, ¶ 20.

{¶15} Because Provolish’s second assignment of error (regarding choice of

measurements) is logically antecedent to her first (regarding the chairs’ conformity to

the contract), we address her assignments of error out of order.

A. Choice of Measurements

{¶16} In her second assignment of error, Provolish protests the trial court’s

acceptance of measurements provided by a party whom she asserts had “a vested

interest.” The trial court’s acceptance of the measurements constituted a factual

finding as to the dimensions of the chairs. We therefore consider only whether it was

against the manifest weight of the evidence.

{¶17} In its decision, the trial court relied on measurements from a series of

photos taken by Stewart, the chairs’ manufacturer. The photos, which were submitted

into evidence by DeCiocco, document the chairs’ dimensions by showing a tape

measure placed against and along various portions of the chairs and cushions. The

trial court explained that it relied on these measurements because they were “taken by

a disinterested third party to whom the chairs were returned and where the chairs are

currently being stored.”

{¶18} Because Provolish offered no substantive evidence that these

measurements were inaccurate, we cannot say the trial court lost its way in accepting

them as true. While Stewart, as the manufacturer, may not have been an entirely

disinterested party, Provolish has offered no substantive evidence that Stewart’s

7 OHIO FIRST DISTRICT COURT OF APPEALS

measurements were affected by any collateral interest in the outcome or were

inaccurate in any particular way. In fact, Provolish does not argue that any of the

relevant measurements represented in the photographs are incorrect.

{¶19} We therefore hold that the trial court’s finding that Stewart’s

photographs accurately reflected the relevant dimensions of the chairs was not against

the manifest weight of the evidence. Provolish’s second assignment of error is

overruled.

B. Contract Meaning & Breach

{¶20} In her first assignment of error, Provolish contends that the trial court

erred in concluding that the measurements provided at trial conformed to the terms

of the contract. In her principal brief to this court, Provolish focuses solely on the trial

court’s alleged failure to recognize that “[t]he delivered chairs deviated by 7 inches in

seat depth, substantially breaching the agreed terms.” She makes two arguments on

this point, which must be understood in the alternative: (1) that the term “seat depth”

referred to the distance from the front of the seat to the seatback, not to the face of the

back pillow/cushion, and (2) that, in any event, the distance from the front of the chair

to the seatback should have been 22 inches with a 3-inch pillow, just like the Fletcher

chair, which the acknowledgment specified as the design reference.

1. Meaning of “Seat Depth”

{¶21} There is no dispute that the acknowledgment promised a chair with a

seat depth of approximately 19 inches, give or take an inch. The question is what “seat

depth” referred to and whether the chairs satisfied these standards. The

acknowledgment does not define “seat depth,” and the parties offer competing

definitions. Provolish contends that “seat depth” refers to the distance from the front

edge of the seat to the seatback (without any pillow). DeCiocco argues that it refers to

8 OHIO FIRST DISTRICT COURT OF APPEALS

the distance from the front edge of the seat to the face of the seatback pillow or

cushion.

{¶22} Determining the meaning of “seat depth” is a question of contract

interpretation. Because this was a contract primarily for the sale of goods, its

interpretation is governed by article two of the Uniform Commercial Code (“UCC”),

adopted by Ohio in R.C. Ch. 1302. See AirBorn Electronics, Inc. v. Magnum Energy

Solutions, L.L.C., 2017-Ohio-70, ¶ 14 (9th Dist.). When the terms in the parties’

“confirmatory memoranda”—in this case the copies of the acknowledgment—agree,

those terms govern the agreement and cannot be contradicted by evidence of prior or

contemporaneous agreements. R.C. 1302.05 (UCC 2-202). However, terms in the

memoranda “may be explained or supplemented . . . by course of performance, course

of dealing, or usage of trade.” R.C. 1302.05(A) (UCC 2-202(a)); see also Varavvas v.

Mullet Cabinets, Inc., 2009-Ohio-6962, ¶ 44 (5th Dist.).

{¶23} In this case, DeCiocco and the trial court relied upon evidence of “usage

of trade,” which can include “any practice or method of dealing having such regularity

of observance in a place, vocation, or trade as to justify an expectation that it will be

observed with respect to the transaction in question.” R.C. 1301.303(C) (UCC 1-

303(c)). Under the UCC, the “existence and scope” of a trade usage are questions of

fact to be proved by the party asserting the usage. Id.; see also Varavvas at ¶ 57 (citing

R.C. 1302.11, which has since been reenacted, in relevant part, in R.C. 1301.303); Den

norske Bank AS v. First Natl. Bank of Boston, 75 F.3d 49, 58-59 (1st Cir. 1996). We

therefore review findings about trade usage, and the meaning such usages impart to

contractual terms, as findings of fact under a manifest-weight standard. Compare

Varavvas at ¶ 58 (upholding interpretation of contract based on trade-usage evidence

because party did not raise manifest-weight challenge).

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶24} Although the parties’ competing definitions of “seat depth” are both

plausible on their face, DeCiocco introduced evidence at the hearing that its definition

was consistent with usage of trade. Before the magistrate, DeCiocco introduced emails

from Nikki Fabrizi, a professional with experience in the furniture-manufacturing

industry.1 Fabrizi’s email explained that both her firm and Wesley Hall (a well-known

furniture manufacturer) “call out a chair’s depth from the front of the chair to the face

of a pillow.” Fabrizi further opined that, if Provolish’s chairs had been only 19 inches

from edge to seatback, “there would be no room for a pillow which, in [Fabrizi’s and

her senior upholsterer’s] opinion, is an integral part of the chair [Provolish] used as a

visual reference for her desired style.”

{¶25} DeCiocco thus offered evidence that, as used in the trade, “seat depth”

referred to the depth from the front edge of the seat to the face of the back pillow.

Provolish did not introduce any evidence to rebut this trade understanding. The trial

court thus found that DeCiocco’s proposed definition of “seat depth” was consistent

with its usage in the furniture-manufacturing trade, and that it carried that trade

meaning in the contract. We cannot say that this finding was contrary to the manifest

weight of the evidence.

{¶26} Under this definition, Provolish’s chairs conformed to the “seat depth”

requirement in the acknowledgment. The Stewart photographs showed that the chairs

had a “seat depth” of between 19 and 20 inches when measured from the front edge of

the seat to the front face of the seatback pillow, which was within 1 inch of the 19-inch

1 Although these emails are clearly hearsay under Evid.R. 802, “the Ohio Rules of Evidence do not

apply to hearings in small claims court.” See Cunningham v. Michael J. Auto Sales, 2021-Ohio- 1390, ¶ 17 (1st Dist.), citing Cleveland Bar Assn. v. Pearlman, 2005-Ohio-4107, ¶ 15; see also Evid.R. 101(D)(8). Rather, in “small-claims proceedings, ‘the reliability, credibility, and admissibility of evidence are determined by the trial court.’” Cunningham at ¶ 18, quoting Karnofel v. Girard Police Dept., 2005-Ohio-6154, ¶ 18 (11th Dist.).

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seat depth listed in the acknowledgment. Thus, the trial court did not err in concluding

that, with respect to their seat depth, the chairs conformed to the contract.

2. Deviations from the Reference Chair

{¶27} Provolish also argues, presumably in the alternative, that her chairs

failed to conform to the agreement because they did not match the dimensions of the

Fletcher chair from Temple Furniture, an image of which Provolish provided to

DeCiocco as a reference. According to email correspondence between Provolish and

Temple Furniture, the Fletcher chair had a seat measuring 22 inches from front edge

to seatback without pillow (“total seat depth”), and came with a 3-inch-thick pillow.

These dimensions differed substantially from the chairs Provolish received, which,

according to Stewart’s photographs, had a total seat depth of roughly 29 inches and

came with pillows that were roughly 9 inches thick.

{¶28} The acknowledgment states that Provolish’s chairs would be “[s]imilar

to concept photo supplied of Temple Furniture #15935 Fletcher Chair,” but clarified

they would be “based on Stewart’s interpretation of the design.” The acknowledgment

did not list a 22-inch total seat depth or a 3-inch pillow thickness. It is silent as to these

dimensions, providing only for a “seat depth” of 19 inches and a “depth” of 38 inches.

Further, no correspondence between the parties prior to the sale cited a desired total

seat depth or pillow thickness.

{¶29} We hold that Provolish and DeCiocco’s contract neither incorporated

the dimensions of the Fletcher chair itself, nor obligated DeCiocco to discover or solicit

those dimensions. DeCiocco was obligated to provide chairs that would conform to the

dimensions listed in the acknowledgment and be similar to the design of the Fletcher

chair in the concept photo, as interpreted by Stewart. The contract’s language

therefore suggested that any gaps in the expressly-listed dimensions would be filled

11 OHIO FIRST DISTRICT COURT OF APPEALS

by Stewart’s interpretations of the Fletcher chair design as seen in the photo—not by

the unlisted dimensions of the actual Fletcher chair. So long as the final product was

within the listed specifications and “[s]imilar to [the] concept photo supplied,” it

conformed to the contract.

{¶30} As already explained, the “seat depth” of the delivered chairs was within

an inch of the 19-inch dimension required by the acknowledgment. And Provolish has

not argued that the chairs’ total depth was anything other than the agreed-upon 38

inches. The chairs therefore conformed to the expressly-listed depth dimensions.

Further, Provolish has not argued that the finished chairs were not a reasonable

interpretation of and similar to the reference photo of the Fletcher chair, only that they

failed to conform to the Fletcher chair’s actual dimensions. Because Provolish did not

make those additional dimensions a part of the agreement, and because the contract

did not impose a duty on DeCiocco to discover them, the contract did not require the

total seat depth and pillow thickness to match those of the Fletcher chair.

{¶31} Provolish has therefore failed to show that the trial court erred in

concluding that the chairs she received conformed to the terms of the contract.

Provolish’s first assignment of error is, accordingly, overruled.

IV. CONCLUSION

{¶32} The trial court did not err, either in accepting the measurements in

Stewart’s photographs or in concluding that the depth of the chairs conformed to the

terms of the agreement. Accordingly, we overrule Provolish’s two assignments of

error, affirm the trial court’s judgment, and decline to address DeCiocco’s proposed

alternative basis for affirmance.

Judgment affirmed.

BOCK and MOORE, JJ., concur.