2011 Ohio 2358
Ohio Ct. App.2011Background
- Rack Co. and Kreimers entered a land-improvement contract; Kreimers sought to expand a lake on property they used personally.
- Kreimers halted the project after Rack Co. sought $67,000, paying a second contractor to finish for $16,649.02.
- Trial court found anticipatory breach by Rack Co. and CSPA violation; awarded Kreimers damages, attorney fees, and noneconomic damages, with some amounts to Rack Co.
- Rack Co. challenged presumed inconsistent verdicts and allocation of attorney fees; Kreimers challenged paralegal expense inclusion.
- This appeal concerns whether CSPA applies to the land-improvement contract, the consistency of damages, remedy election, and fee awards.
- Appellate court affirmed the trial court’s judgment in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSPA applies to a land-improvement contract | Rack Co. argues not a consumer transaction. | Kreimers contend it is a consumer transaction for personal use. | CSPA applies; contract is a consumer transaction. |
| Whether the verdicts were inconsistent or improper | Rack Co. claims no basis for both damages and fees. | Kreimers rely on independent findings; no inconsistency. | No reversible inconsistency; judgments consistent. |
| Remedy election under CSPA or HSSA | Rack Co. argues improper remedy election and lack of clear election before trial. | Kreimers elected remedies based on theories; election was effective. | Election was harmless error; upheld damages and lack of HSSA cancellation. |
| Whether material deviations increased project cost | Rack Co. faults trial court’s factual findings. | Kreimers assert evidence supported cost increases. | Trial court findings supported by competent evidence; affirmed. |
| Whether paralegal expenses should be included in attorney fees | Kreimers sought paralegal expenses; some authorities allow them. | Rack Co. argues they should not be included; trial court excluded them. | Paralegal expenses not included; award affirmed as not shocking the conscience. |
Key Cases Cited
- Williams v. Edwards, 129 Ohio App.3d 116 (1998) (land-improvement contracts can fall under CSPA when for personal use)
- Cas. Restoration Servs., L.L.C. v. Jenkins, 2007-Ohio-5131 (1st Dist.) (preferrable framework for CSPA remedies and election principles)
- Brown v. Liberty Clubs, Inc., 45 Ohio St.3d 191 (1989) (statutory interpretation guiding consumer transactions)
- Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560 (2010) (applies CSPA to consumer transactions with disclosures)
- Giffin v. Crestview Cadillac, 10th Dist. No. 09AP-278, 2009-Ohio-6569 (2010) (acknowledges factors for consumer transaction analysis)