Smith v. Sack, 2016 Ohio 763

Smith and Sack entered four written contracts (one per project stage) between 2010–2013 for a stone patio, retaining walls, and a detached boundary wall; payments totaled $52,794.
Sack completed work before providing a seller-issued HSSA cancellation notice; portions of the patio/upper retaining wall failed and the patio became unusable.
Smith timely signed and mailed cancellation notices for all four contracts on Feb. 12, 2015 (Sack had supplied notices on Feb. 10, 2015) and demanded refunds; Sack did not refund.
Smith sued for breach of contract, CSPA violations, and HSSA relief; Sack counterclaimed for the unpaid balance on the final invoice.
Trial court granted summary judgment for Smith on liability (HSSA applies; Smith timely cancelled; seller may not begin performance during the cancellation period and bears the risk), dismissed the counterclaim, and later held a hearing on the amount of Smith’s refund.
Final judgment refunded Smith $38,052 (full refunds of three invoices and partial refund of one invoice excluding $14,742 for the detached southern wall that Smith admitted was defect-free).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether timely cancellation under the HSSA entitles Smith to a refund without proving damages	Smith: timely cancellation under HSSA entitles him to refund of payments; no damages proof required	Sack: setting a "damages hearing" meant Smith needed to prove damages; court should award damages only if proven	Held: Smith elected HSSA remedy and was entitled to a refund without proving damages; the hearing determined refund amount, not to convert remedy to damages
Whether the trial court erred by awarding a full or partial refund instead of making equitable offsets for benefit received	Smith: entitled to refund of amounts paid; HSSA has no substantial-performance or unjust-enrichment offset for service contracts	Sack: full refund would unjustly enrich Smith; court should equitably reduce refund for portions of work without defects	Held: HSSA does not require offsets for services begun before cancellation; court properly deducted only for the separate detached wall that was defect-free
Whether the court should have excluded payment for patio steps from the refund	Smith: steps were part of unusable patio and therefore part of cancellation refund	Sack: Smith identified no problem with steps; refund should be reduced for them	Held: steps were part of the failed patio; court did not abuse discretion by including their cost in the refund

Clemens v. Duwel, 100 Ohio App.3d 423 (2d Dist.) (construction begun before HSSA cancellation period places risk on seller)