2018 Ohio 2968
Ohio Ct. App.2018Background
- Whittington hired Perrucci to repair water damage to her 1980s mobile home using an insurance estimate; she endorsed a $3,756.51 insurance check to him and Perrucci submitted a final invoice of $8,681.55. No written contract was executed.
- Work was performed primarily by subcontractor Shawn Allamon; disputes arose about scope and quality (floors, vanity, underbelly insulation, relocation of laundry appliances). Whittington terminated the job in August 2012 and refused further payment.
- Whittington counterclaimed under the Ohio Consumer Sales Practices Act (CSPA) and for breach/negligence, seeking treble damages and attorney fees; Perrucci sued for unpaid construction costs and filed a mechanic’s lien.
- A magistrate found Perrucci was a “supplier” under the CSPA, that his work was not performed in a workmanlike manner, awarded Whittington $11,029.61 in repair damages (plus statutory treble damages limited by municipal-court jurisdiction to reach a $15,000 judgment), and reserved attorney fees.
- The trial court adopted the magistrate’s decision; later it awarded Whittington $15,926.74 in attorney fees. Perrucci appealed, raising six assignments of error (supplier status under CSPA; expert qualification; breach/workmanship; damages calculation; exclusion of Allamon’s expert testimony; attorney-fee calculation).
Issues
| Issue | Plaintiff's Argument (Perrucci) | Defendant's Argument (Whittington) | Held |
|---|---|---|---|
| Whether Perrucci was a "supplier" engaged in business under the CSPA | Perrucci said he was not regularly in the construction business, did not advertise or employ, and only took an isolated job | Whittington pointed to Perrucci’s estimate labeled “Mark Perrucci – Sani Home,” his prior construction work and deposition admissions | Court held Perrucci was a supplier engaged in the business; credibility (deposition v. trial) supported finding |
| Admissibility/qualification of Whittington’s expert (Hellman) | Hellman lacked specific mobile-home code expertise, relied on owner recollection for year, and used third-party information | Whittington argued Hellman had 40 years carpentry/construction experience and was competent to opine on carpentry work | Court admitted Hellman as an expert in carpentry; trial court did not abuse discretion |
| Whether Perrucci breached contract / performed in a workmanlike manner | Perrucci contended he performed the contracted remedial repairs per the insurance estimate, that variances were reasonable or owner-approved, and that lay testimony and Allamon supported workmanship | Whittington relied on Hellman, insurance adjuster Laughlin, and her own testimony documenting unstable floors, gaps, moved laundry, hole under tub, crooked vanity | Court found breach and inadequate, non-workmanlike performance; Perrucci’s witnesses found not credible |
| Proper measure and computation of damages (cost to repair vs. offset by contract balance) | Perrucci argued damages should be cost to repair minus contract balance (so no double recovery) and that Hellman’s estimate was speculative/overbroad | Whittington argued Hellman’s estimate covered repairs for Perrucci’s defective work and treble damages apply under CSPA; municipal-court jurisdiction caps recovery | Court awarded Dunn Well estimate ($11,029.61) plus statutory damages limited by jurisdiction to reach $15,000; even if contract balance deducted, jurisdictional cap yields same result |
| Exclusion of Allamon’s testimony on expert assumptions in Hellman’s report | Perrucci argued Allamon, a fact witness with first-hand knowledge, should be allowed to rebut Hellman’s factual assumptions | Whittington asserted Allamon was permitted to testify as a lay witness but was not disclosed as an expert per Civ.R. 26 | Court allowed Allamon to testify as lay (not as an undisclosed expert); exclusion as expert was proper under discovery rules |
| Award and allocation of attorney fees | Perrucci argued expert Huffman improperly attributed 80% of the bill to CSPA work and that fees were not shown reasonable/necessary for CSPA claims | Whittington presented detailed billing (Exhibit AA) and stipulated Huffman as expert; Huffman opined hours and rates reasonable and that CSPA work overlapped with contract defense | Court accepted Huffman’s opinion, credited 80% allocation as reasonable, and upheld $15,926.74 award in fees |
Key Cases Cited
- Einhorn v. Ford Motor Co., 48 Ohio St.3d 27 (Ohio 1989) (CSPA is remedial and prohibits unfair or deceptive practices by suppliers)
- Bittner v. Tri–County Toyota, Inc., 58 Ohio St.3d 143 (Ohio 1991) (lodestar method for attorney-fee calculation; exclude hours unreasonably expended)
- Sites v. Moore, 79 Ohio App.3d 694 (Ohio Ct. App.) (breaching party not entitled to collect damages from nonbreaching party)
- Proctor v. Proctor, 48 Ohio App.3d 55 (Ohio Ct. App.) (appellate abuse-of-discretion standard for trial court adoption of magistrate report)
- Moore v. Florida Bank of Commerce, 654 F.Supp. 38 (S.D. Ohio 1986) ("engaged in the business of" implies more than an isolated sale)
- Schutte v. Mooney, 165 Ohio App.3d 56 (Ohio Ct. App.) (trial court discretion to qualify experts; expert need not be the best possible witness)
- Fry v. King, 192 Ohio App.3d 692 (Ohio Ct. App.) (Evid.R. 703: expert may base opinion on facts perceived by the expert or admitted in evidence)