Christi S. Easterday v. Danny W. Gumm, 96-LW-4755

• Decision Date: 15 November 1996
• Docket Number: 96-LW-4755,96 CA 2179
• Parties: CHRISTI S. EASTERDAY, Plaintiff-Appellee v. DANNY W. GUMM, Defendant-Appellee and DANNY L. GUMM, DBA, D.L. GUMM PLUMBING, HEATING & COOLING, Defendant-Appellant and D.L. GUMM PLUMBING, HEATING & COOLING, Defendant-Appellant Case
• Court: Ohio Court of Appeals

CHRISTI S. EASTERDAY, Plaintiff-Appellee v. DANNY W. GUMM, Defendant-Appellee

No. 96 CA 2179.

96-LW-4755 (4th)

Court of Appeals of Ohio, Fourth District Ross

November 15, 1996

(fn1)COUNSEL FOR APPELLANTS: William C. Boulger, 14 South Paint Street Suite 10-14, Chillicothe, Ohio 45601.

COUNSEL FOR APPELLEE: James L. Mann, 280 Yoctangee Parkway Chillicothe, Ohio 45601-1694.

DECISION

ABELE P.J.

This is an appeal from a Chillicothe Municipal Court judgment in favor of Christi S. Easterday, plaintiff below and appellee herein, and against Danny L. Gumm, Sr., d.b.a. D.L. Gumm Plumbing, Heating and Cooling, defendant below and appellant herein. The trial court found that as a result of appellant's false statements about the condition of appellee's heat pump, appellee sustained the following actual damages: (1) $3,800 decrease in value of her home; (2) $481.83 in lost wages; and (3) $300 in expenses for discovering that the old heat pump was not defective and for reconnecting the old heat pump. The trial court, finding that appellant's actions constituted unfair, deceptive and unconscionable acts prohibited by the Consumer Sales Practices Act, held that appellee is entitled to recover three times her $4,581.83 actual damages, but limited the damages award to the $10,000 jurisdictional limit of the trial court. After finding that appellant knowingly committed the acts that violated the Consumer Sales Practices Act, the trial court awarded appellee an additional $3,239.38 for attorney fees incurred in bringing the action.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN CONTINUING THIS CASE IN THE MUNICIPAL COURT SINCE PLAINTIFF SUED FOR THE SUM OF $13,745.49, A SUM BEYOND ITS JURISDICTIONAL AMOUNT, ALTHOUGH SAID LACK OF JURISDICTION WAS BROUGHT TO THE ATTENTION OF THE COURT BY MOTION TO DISMISS."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ALLOWING PLAINTIFF TO AMEND HER COMPLAINT SINCE CIVIL RULE 12(H)(3) REQUIRED THE MUNICIPAL COURT TO DISMISS THE ACTION WHEN IT DOES NOT HAVE JURISDICTION OF THE SUBJECT MATTER."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN DETERMINING THAT THE PROPER MEASURE OF DAMAGES WAS THE DIMINISHED VALUE OF THE REAL ESTATE WHICH IS APPROXIMATED BY THE SALE AND INSTALLATION OF A CARRIER AIR HANDLER AND HEAT PUMP BY ACCURATE HEATING AND COOLING FOR THE SUM OF $3,800.00."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ALLOWING TREBLE DAMAGES UNDER THE CONSUMER SALES PRACTICES ACT WHEN PLAINTIFF ELECTED TO RESCIND THE CONTRACT OF SALE BY POST-DATING AND STOPPING PAYMENT ON HER CHECK IN PAYMENT OF THE SALE PRICE."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADDING TO THE $10,000 JUDGMENT AN AWARD OF ATTORNEY FEES IN THE SUM OF $3,239.38 SINCE THE ATTORNEY FEE AWARD CONSTITUTED DAMAGES AND NOT COSTS AND COURT DID NOT HAVE JURISDICTION."

On August 5, 1994, appellee filed the instant complaint alleging appellant violated the Consumer Sales Practices Act, R.C. Chapter 1345. In particular, appellee alleged that on or about June 6, 1994, she entered into a home remodeling contract with Jamie Fuller and Mike Claytor. The remodeling work required that the air handler unit connected to appellee's heat pump be moved two feet to a new location in appellee's basement. Because neither Fuller nor Claytor had the necessary training, equipment, and experience to collect the freon from the air handler unit prior to moving the unit and to return the freon to the air handler unit after the move, they subcontracted the freon work to appellant. After collecting the freon, appellant told appellee that the heat pump compressor was bad and needed to be replaced.

Appellant later advised appellee that the entire heat pump should be replaced. Appellee agreed to pay appellant $1,900 to replace the heat pump. Appellant replaced the heat pump, but did not install a new coil, new pad, new lines, or a permanent filter. Appellant agreed to accept $1,600 plus tax for installing the new heat pump. Appellee gave appellant a check for that amount, but stopped payment on the check when she learned that appellant had not installed a new coil, new pad, new lines, or permanent filter, and had not connected the wires that would enable the heat pump to operate as a furnace. Appellee later learned that the new heat pump, at three tons, was not compatible with her two and one-half ton air handler. The incompatibility voided the heat pump's warranty.

In the body of the complaint, appellee alleged that appellant's false representations caused her to sustain $3,800 in compensatory damages, $481.83 in lost wages, and $300 to have her old heat pump tested and reconnected. Appellee further alleged that because appellant's false representations constitute unfair, deceptive and unconscionable acts under the Consumer Sales Practices Act, R.C. Chapter 1345, the trial court should award appellee treble damages. Appellee prayed for relief as follows:

"WHEREFORE, Plaintiff prays for judgment against Defendants for compensatory damages, treble damages under the CSPA, punitive damages and attorney fees to which he (sic) may be entitled together with interests thereon at 10% per annum from June 23, 1994 and her costs."

On September 8, 1994, appellant filed a motion to dismiss the complaint for lack of subject matter jurisdiction. Appellant argued that appellee "has sued for an amount in the total sum of $13,745.49 and the jurisdiction amount of the Municipal Court can not be greater than $10,000.00 under Revised Code section 1901.17."

On September 21, 1994, appellee filed a memorandum in opposition to appellant's motion to dismiss. Appellee argued that although three times the sum of her actual damages exceeds the $10,000 jurisdictional limit of the trial court, her prayer for relief requested only those damages to which she may be entitled. In order to avoid further confusion on the damage issue, on that same date appellee filed an amended complaint with the following prayer for relief:

"WHEREFORE, Plaintiff prays for judgment against the Defendants for compensatory damages, treble damages under the CSPA, punitive damages in an amount not to exceed $10,000.00 and attorney fees to which she may be entitled together with interest thereon at 10% per annum from June 23, 1994 and her costs."

We note that because appellee filed her amended complaint before appellant filed a responsive pleading, appellee did not need to seek leave of court before filing the amended complaint.

On October 17, 1994, appellant filed a memorandum arguing that appellee's amended complaint does not avoid the lack of subject matter jurisdiction problem. Appellant cited Civ.R. 12(H)(3) which provides as follows:

Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

Appellant noted that in State ex rel. Natl. Emp. Benefit Services, Inc. v. Cuyahoga County Court of Common Pleas (1990), 49 Ohio St.3d 49), 550 N.E.2d 941, the court held that when an initial pleading seeks relief beyond the $10,000 subject matter jurisdiction limit, the municipal court must dismiss the action.

On October 19, 1994, the trial court overruled appellants motion to dismiss. The trial court reasoned as follows:

"(1) The original complaint does not expressly state that it exceeds the jurisdiction of the Municipal Court as the damages `to which you may be entitled' cannot exceed the jurisdiction of this Court and by inference must be restricted to $10,000.00;

(2) The Amended Complaint filed herein on September 21, 1994 before the consideration of this Motion to Dismiss clearly [limits] the complaint for damages to the jurisdictional limit of $10,000.00. The Court further notes the Amended Complaint was properly filed and served pursuant to Civil Rule."

On November 28, 1994, appellant filed an answer and counterclaim. In the answer, appellant denied many of the allegations of the complaint. Appellant also alleged that when appellee stopped payment on her check, appellee elected to rescind the sale and thus R.C. 1345.09 bars appellant from seeking damages. In the counterclaim, appellant alleged he suffered $475 in damages when appellee rescinded the sale. Appellant also alleged that Fuller and Claytor failed to pay appellant $370 due for the freon work, and therefore appellee must pay appellant that amount due.

The court held a trial on November 3, 1995 and December 11, 1995. At the trial, appellant admitted that he told appellee that her heat pump had a high head pressure and should be replaced for a cost of $1,900. Fuller testified that when he objected to the fact that appellant cut a bundle of eight live wires running to appellee's heat pump thermostat, appellant said "Well, don't worry about it. She [appellee] can afford one [a new heat pump]." Fuller further testified that appellant failed to use a freon reclaimer when removing the freon. Instead, appellant dumped the freon into a five gallon bucket. Both Fuller and Claytor testified that although appellant told appellee that the heat pump compressor was bad, the heat pump worked when reinstalled at a later date.

Appellee testified that after appellant made false representations about the condition of the heat pump compressor and other matters, appellee contracted with appellant to have appellant install a new heat pump the next day for $1,900. Appellant failed to install a new heat pump on the next day. After appellant installed the new heat pump, appellee noticed that appellant had failed to install a new coil, new lines, a new pad, or a permanent filter. To make a temporary filter, appellant slashed a hole in a duct and shoved a makeshift filter partly into...