Griffin Contracting & Restoration v. McIntyre

• Decision Date: 06 August 2018
• Docket Number: NO. CA2017-11-058,CA2017-11-058
• Citation: 107 N.E.3d 22,2018 Ohio 3121
• Parties: GRIFFIN CONTRACTING AND RESTORATION, Plaintiff-Appellee, v. Susan MCINTYRE, et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

107 N.E.3d 22

2018 Ohio 3121

GRIFFIN CONTRACTING AND RESTORATION, Plaintiff-Appellee,

v.Susan MCINTYRE, et al., Defendants-Appellants.

NO. CA2017-11-058

Court of Appeals of Ohio, Twelfth District, Clermont County.

August 6, 2018

Maria K. Ante, 7000 Houston Road, Suite 38, Florence, KY, 41042, for plaintiff-appellee

Becker & Cade, Dennis A. Becker, 526 A Wards Corner Road, Loveland, Ohio, 45140, for defendants-appellants

OPINION

PIPER, J.

{¶ 1} On August 4, 2015, plaintiff-appellee, Griffin Contracting and Restoration, LLC ("Griffin"), filed a complaint in the Small Claims Division of the Clermont County Municipal Court asserting a claim for breach of contract. Defendants-appellants, Susan and Jack McIntyre ("McIntyres"), answered and filed counterclaims asserting a right to rescind the contract pursuant to the Home Solicitation Sales Act ("HSSA"), and alternatively, rescission and damages pursuant to the Consumer Sales Practices Act ("CSPA"). The McIntyres also moved to transfer the case to the Clermont County Court of Common Pleas. The municipal court granted the motion and transferred the case to the common pleas court. The case proceeded to trial on October 2, 2017, and the trial court found in favor of Griffin on its breach of contract claim. The trial court further found the HSSA inapplicable. However, the trial court did find several CSPA violations and awarded damages to the McIntyres. The trial court offset the parties' damages with the result being a judgment in favor of the McIntyres.

{¶ 2} The McIntyres appeal the trial court's decision awarding them damages for less than the amount they sought to recover by way of their counterclaims against Griffin. Additionally, the McIntyres also appeal the trial court's findings with respect to their counterclaims brought pursuant to the HSSA and CSPA.

{¶ 3} On July 24, 2014, the McIntyres' home sustained fire and smoke damage. The fire damage was contained to the master bathroom where an electrical outlet caught fire. The master bathroom, master bedroom, and walk-in closet, all incurred smoke damage. Susan contacted the family's home insurer, Pekin Insurance ("Pekin"), and made a claim. Pekin assigned Jessica Henson, a claims adjuster, to administer said claim. Later that afternoon, Henson responded to the McIntyres' residence to investigate the claim. Henson testified that she provided Susan the names of two contractors to initiate repairs. Henson attempted to call the first contractor, but nobody answered. Henson then contacted Griffin. She placed the call from her cell phone, while still present at the McIntyre residence. It is unclear whether, and to what extent, Susan participated in the call to Griffin. In her deposition, Susan testified that Henson made all the phone calls. However, Susan testified at trial that she was unsure if Henson's cell phone was on speakerphone.

{¶ 4} A representative from Griffin responded to the McIntyre residence shortly after Henson departed. The Griffin representative met with Susan. The record does not reflect the substance of this conversation. Afterward, Susan signed an Emergency Service Authorization, electing to have Griffin initiate emergency repairs.

{¶ 5} Griffin prepared three separate estimates, each specific to an individual phase of the repair. First, an estimate for the "contents packout" phase in the amount of $4,757.90. Second, an estimate for the "mitigation" phase in the amount of $2,672.49. Third, an estimate for the "rebuild" phase in the amount of $6,948.18, which was later adjusted to $7,198.18 due to an additional $250 in incidentals. Pekin approved the three estimates and paid insurance proceeds to the McIntyres for the "contents packout" and "mitigation" phase estimates. In turn, the McIntyres paid Griffin. Therefore, there is no dispute regarding the "contents packout" and "mitigation" phases of the repair process.

{¶ 6} In addition to the Emergency Service Authorization, Susan signed an Insurance Work Authorization/Contractor Agreement with Griffin. Pekin approved the "rebuild" phase estimate and issued a check to the McIntyres for $4,211.13. The McIntyres paid Griffin the $4,211.13. On January 28, 2015, Pekin issued a check to the McIntyres for $2,987.05, representing the remaining balance due to Griffin. The McIntyres made no further payments to Griffin.

{¶ 7} Susan testified at her deposition that she received documents containing drawings and dimensions; however, she did not recall seeing estimate figures. In her trial testimony, she did not recall seeing any estimates. Kevin Carpenter, a project manager for Griffin, testified that he prepared the "rebuild" phase estimate and provided it to Henson on August 4, 2017, a week before Susan signed the Insurance Work Authorization. Carpenter further testified that he received an e-mail from an employee of Pekin, which stated the employee had reviewed the estimate with Susan.

{¶ 8} Henson testified that Griffin performed all work contracted to be completed and that Griffin provided a Certification of Completion of Repairs. This certification indicated that "all necessary repairs * * * had been completed in a workmanlike manner and that no materials, labor or [the] like liens have been or will be incurred as a result of labor performed or materials used." The McIntyres signed this document. Likewise, Susan signed a Customer Satisfaction Survey, which indicated her "overall impression" of the work was "very good." The survey form further indicated Susan answered "yes" in response to questions regarding the following: whether (1) the estimator was prompt, (2) the estimator clearly explained the process of the work done, (3) Griffin employees were polite, courteous, and helpful, (4) production staff was neat, knowledgeable, and professional, (5) the work was done to her satisfaction, (6) she would recommend Griffin to her friends and family, and (7) Griffin may use her as a reference. Later at trial, Susan testified her impression of the work performed was "terrible." Susan acknowledged signing the survey, but disputed whether she checked "yes" to the seven answer boxes.

{¶ 9} The trial court found in favor of Griffin in the amount of $2,737.05 on its breach of contract claim. This amount represented the $2,987.05 previously withheld less the $250.00 for incidentals. With respect to the McIntyres' HSSA counterclaim, the trial court found the HSSA was inapplicable because there was "insufficient evidence to conclude Griffin solicited anything from the McIntyres." The trial court determined that the McIntyres requested Griffin's services, accepted them, and offered no complaints until months after the work was completed. The trial court stated that, pursuant to the HSSA, it would be "grossly inequitable" to permit the McIntyres to rescind the contract, while retaining the benefits therefrom. Even had Griffin violated the HSSA, the resulting damages would equal $0.00. In regard to the McIntyres' CSPA counterclaim, the trial court found that the work performed and services rendered constituted a "consumer transaction" and "that Griffin had engaged in deceptive acts." The trial court found Griffin violated the CSPA in the following ways:

(1) by failure to provide written notice to the McIntyres of their right to cancel the transaction, as required by R.C. 1345.23 [$200.00 in statutory damages];

(2) by failure to provide the written notice concerning estimates required by [Ohio Adm.Code] 109:4-3-05(A)(1) [$200.00 in statutory damages]; [and]

(3) representing that repairs had been made or services performed when they have not, pursuant to [Ohio Adm.Code] 109:4-3-05(D)(9). Specifically, by demanding for the full estimate amount, including fees for the replacement of blinds in the bedroom and closet ($76.82[*]2 = $153.64 actual damages), removal and replacement of bathroom floor underlayment ($163.37 actual damages), removal of vinyl floor covering * * * ($53.96 actual damages), and six months of storage when only [three] months was provided ($892.50[/]2 = $446.25 actual damages), Griffin is representing that said work was done, when the Court finds it was not.

{¶ 10} The trial court found these violations resulted in actual damages of $817.22. It trebled the damages and awarded $2,451.66, plus the $400.00 for statutory damages. Thus, the trial court awarded total damages of $2,851.66. The trial court offset the CSPA damages award with the damages award to Griffin on its breach of contract claim. Thus, the trial court entered judgment in favor of the McIntyres in the amount of $114.61.

{¶ 11} The McIntyres timely appealed the judgment of the trial court.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT ERRED IN CONCLUDING THAT THE HOME SALES SOLICITATION ACT DID NOT APPLY TO THE TRANSACTION BETWEEN GRIFFIN CONTRACTING AND THE MCINTYRES.

{¶ 14} The McIntyres contend the trial court erred in finding the HSSA inapplicable based on insufficient evidence that Griffin engaged in a "solicitation" of the sale. The McIntyres further argue the trial court erred in finding it would be "grossly inequitable" to require Griffin to return all payments, while allowing the McIntyres "to retain the benefit of the services, work and materials provided by Griffin."

{¶ 15} The essence of the McIntyres' first argument pertains to the trial court's weighing of the evidence and its judgment as to the credibility of the witnesses. Therefore, we construe this argument as asserting the trial court's decision finding the HSSA inapplicable was against the manifest weight of the evidence. See Sterling Constr., Inc. v. Alkire , 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, 2017 WL 3475420, ¶ 8. "The standard of review for a manifest weight challenge in a civil case is the same as that applied to a criminal case." Dunn v. Clark , 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, 2016 WL 698090, ¶ 8, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. Thus, in...