Green Maple Enters., LLC v. Forrester
| Decision Date | 30 December 2021 |
| Docket Number | 20 JE 0020 |
| Citation | 182 N.E.3d 1265 |
| Parties | GREEN MAPLE ENTERPRISES, LLC d/b/a Servpro of West Hills & North Washington County, Plaintiff-Appellant/Cross-Appellee, v. Clay FORRESTER et al., Defendants-Appellees/Cross Appellants. |
| Court | Ohio Court of Appeals |
Atty. Stephen Eckinger, 1611 North Main Street, Suite A, North Canton, Ohio 44720, for Plaintiff-Appellant/Cross-Appellee.
Atty. Costa Mastros, 401 Market Street, Suite 1210, Steubenville, Ohio 43952, for Defendants-Appellees/Cross-Appellants.
BEFORE: Gene Donofrio, Carol Ann Robb, David A. D'Apolito, Judges.
OPINION AND JUDGMENT ENTRY
Donofrio, J. {¶1} Plaintiff-appellant/cross-appellee, Green Maple Enterprises, doing business as Servpro of West Hills & North Washington County, (Servpro) appeals from a Jefferson County Common Pleas Court judgment granting a verdict in favor of defendants-appellees/cross-appellants, Clay Forrester and Emily Nelson (Homeowners), in the amount of $48,061.22 plus costs and interest. Homeowners have cross-appealed.
{¶2} In November 2017, Homeowners purchased a home and a fire occurred there three days later. Their insurance company placed them in touch with Servpro. Green Maple Enterprises, doing business as Servpro, is a restoration company that has been in business for over 6 years. Servpro responds to emergency cleanup situations and performs rebuilding/remodeling. Servpro completed the mitigation work to the house.
{¶3} On December 12, 2017, Homeowners contracted for Servpro to complete the rebuilding/remodeling of the home. The preliminary estimate was $91,287.06 for partial roof replacement, fireplace work around the area where the fire began (source room), and interior ceiling work. Servpro contends that its representative told Homeowners that the process would take between 8-12 months. Homeowners contend that they were told that the process would be completed by late January/early February 2018. Homeowners returned home in late June 2018 after the insurance company would no longer pay for them to stay outside of the home. When they returned home, construction was ongoing. Final walkthrough occurred in August 2018 and Homeowners presented a punch list of unfinished items. Homeowners did not want Servpro to complete the punch list.
{¶4} Servpro received payments for its work directly from Homeowners’ insurance and mortgage companies. From one of these payments, Servpro wrote a check to Homeowners for $16,087.50 so that they could have another company perform chimney repairs. According to Servpro, it was paid $75,199.56 for the project and was still owed $27,685.06. Servpro invoiced Homeowners stating the balance due, which included a $355.46 deduction for their punch list items.
{¶5} When it did not receive a final payment, Servpro filed a complaint against Homeowners in the Jefferson County Common Pleas Court for breach of contract, unjust enrichment, payment due on account, and fraud. Homeowners answered and counterclaimed, asserting that Servpro failed to complete its work, performed in an unworkmanlike/negligent manner, breached its contract, and violated the Ohio Consumer Sales Practice Act (OCSPA), R.C. 1345, et seq.
{¶6} A bench trial was held and on September 23, 2020, the trial court found in favor of Homeowners. The court noted that it had viewed the home, and although this was not evidence, it provided an understanding of the trial testimony concerning the defects alleged. The court concluded that no evidence supported Servpro's causes of action against Homeowners because Servpro breached the contract by failing to perform in a timely and unworkmanlike manner.
{¶7} The court also held that Servpro committed deceptive and unconscionable acts in violation of the OCSPA. It found that Servpro acted deceptively when it attempted to substitute plain pine wood for cedar on the ceiling in the source room. The court explained that the contract provided for Servpro to install cedar on that ceiling, and while ultimately installed there, this occurred only because Homeowners happened to be on site and reminded Servpro that the ceiling was supposed to be cedar. The court also found that while Servpro's installation of rubber quarter rounds for crown molding was "understandable" because the area where the molding was supposed to go was round, it was unacceptable as crown molding was provided for in the contract.
{¶8} The court further held that Servpro's lengthy delays and poor workmanship were "unconscionable" acts under the OCSPA. It found the delays inexcusable, caused solely by Servpro, and made solely for its benefit as it pulled workers off of Homeowners’ job to work on other jobs. The court found that this resulted in Homeowners having to return home while construction was ongoing as their insurance company refused to pay for further rentals outside of the home because of the time promised for construction completion. The court also found that Servpro's construction was "unconscionable" as it painted the walls of the house without washing off soot from the fire, which caused the paint to blister and bubble, and failed to allow the cedar and pine for the kitchen and living rooms to acclimate to the home before installation, which caused it to shrink, gap, loosen, and bulge, which resulted in "substantial defects." The court also found that cedar oils bled through the finish and created unsightly stains and Servpro substituted rubber quarter round moldings for crown molding and installed them poorly. The court also noted that Servpro's roof tarping was poorly done and allowed water to enter and create icicles in the house.
{¶9} The court found that even if given the opportunity to correct defects, Servpro's suggested corrections would have been inadequate. The court noted that Servpro did not want to replace the cedar ceiling, but wanted only to tack it up, which would have left the boards shrunk and separated in length and width. The court explained that even though Servpro attempted to fill gaps in the cedar boards with putty and blamed Homeowners for suggesting the putty, the ceiling was
{¶10} Thus, the trial court found in favor of Homeowners. In calculating damages, the court found that Homeowner's out-of-pocket expenses to repair the defects, as testified to by their expert, was $23,248.76. The court awarded Homeowners $2,000.00 in non-economic damages for excessive delays, constructive eviction from the home due to the delays, and having to move back into their home while construction was ongoing. Accordingly, the court found that "straight damages" sustained by Homeowners amounted to $25,248.76. The court trebled these damages under the OCSPA, which totaled $75,746.28. The court then subtracted $27,685.06 as a credit to Servpro for the balance of the contract left unpaid, which resulted in a verdict for Homeowners in the amount of $48,061.22. The court explained that it gave the credit to Servpro because if Servpro did not receive it and paid damages, Servpro would pay damages twice, once for a discount and again for payment of damages. The court also denied attorney fees to Homeowners under the OCSPA. It acknowledged that it had the discretion to award the attorney fees, but concluded that it was inappropriate to award them in addition to treble damages.
{¶11} Servpro filed an appeal in this case and Homeowners filed a cross-appeal.
{¶12} Servpro's first assignment of error states:
THE TRIAL COURT'S FINDING OF VIOLATIONS OF THE CONSUMER SALES PRACTICES ACT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶13} Servpro asserts that the trial court lost its way in finding that it violated the OCSPA. It acknowledges that pine for the source room ceiling was erroneously stated on the initial estimate for the job, but asserts that it was quickly corrected and the only pine delivered to the home was for the kitchen and living room. Servpro asserts that cedar was ultimately installed on the ceiling in the source room. Servpro also contends that the court's finding that it was "understandable" for it to use rubber quarter round rather than crown molding negates a finding that it was deceptive. Servpro further asserts that the court did not indicate whether it had considered the factors listed in R.C. 1345.02(B) to determine deceptiveness.
{¶14} Servpro additionally contends that the trial court did not consider the factors listed in R.C. 1345.03(B) in determining whether conduct is unconscionable, and even accepting the court's findings of gross construction delays and issues regarding paint and trim, improperly acclimated wood, and cedar oils bleeding through the finish, these acts do not rise to the level of unconscionability under the OCSPA. Servpro asserts that workmanship that does not meet a consumer's particular standards does not translate into deceptive or unconscionable conduct.
{¶15} When reviewing civil appeals from bench trials, an appellate court applies a manifest weight standard of review. Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181 (8th Dist.), citing App.R. 12(C), Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Judgments supported by some competent, credible evidence going to all the material elements of the case must not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus (1978). See, also, Gerijo, Inc. v. Fairfield , 70 Ohio St.3d 223, 226, 638 N.E.2d 533 (1994). Reviewing courts must oblige every reasonable presumption in favor of the lower court's judgment and finding of facts. Gerijo , 70 Ohio St.3d at 226, 638 N.E.2d 533 (citing Seasons Coal Co., supra ). If the evidence is susceptible to more than one interpretation, then we must construe it consistently with the lower ...
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