582 N.E.2d 1023 | Ohio Ct. App. | 1989
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *40
Defendant-appellant, Boatsmith Marine Service Storage, Inc., appeals from the dismissal of its counterclaim, and the judgment in which the trial court awarded damages in favor of plaintiff-appellee, Thomas A. Albert, in the sum of $2,043, with $1,500 attorney fees for an unfair or deceptive consumer sales practice in violation of R.C.
For twenty-seven years, defendant has been in the business of boat repair and storage. After having his damaged 1969 Drifter houseboat towed to defendant's shop, plaintiff personally engaged defendant to repair the damage. The adjuster for plaintiff's insurance carrier examined the damaged houseboat at defendant's business premises and informed defendant that his company would pay $10,200 toward the repairs. Plaintiff also requested defendant to perform additional cosmetic work, unrelated to the damage, which included sandblasting and painting the hull and mounting a generator. When defendant had not returned the boat after eleven months, plaintiff requested defendant to give him the houseboat although it had not been water-tested. As plaintiff drove the houseboat from defendant's business, he noted difficulty in shifting into reverse. About a mile from defendant's business the houseboat stopped, and plaintiff could not restart it. He docked the boat at a friend's property, and one and one-half weeks later employed another boat mechanic to make the houseboat operable, and to complete what he claimed was a defective paint job.
Plaintiff's amended complaint contained claims for breach of contract, breach of warranty and violation of the Consumer Sales Practices Act based upon defendant's failure to provide an estimate and its installation of a used, rather than a new, outdrive. Following a bench trial, the trial court granted judgment for the plaintiff, finding that defendant violated the Consumer Sales Practices Act, and dismissed defendant's counterclaim. *41
In its first assignment of error, based upon insufficiency of the evidence, defendant contends that it did not violate R.C.
"(A) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service where the anticipated cost exceeds twenty-five dollars and there has been face to face contact between the consumer or his representative and the supplier or his representative, prior to the commencement of the repair or service for a supplier to:
"(1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, to provide the consumer with a form which indicates the date, the identity of the supplier, the consumer's name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service. The form shall also clearly and conspicuously contain the following disclosures in substantially the following language:
"___ written estimate
"___ oral estimate
"___ no estimate'
"* * *
"(D)(6) Charge for any repair or service which has not been authorized by the consumer;
"* * *
"(12) Fail to provide the consumer with an itemized list of repairs performed or services rendered, including a list of parts or materials and a statement of whether they are used, remanufactured, or rebuilt, if not new, and the cost thereof to the consumer, the amount charged for labor, and the identity of the individual performing the repair or service." *42
Plaintiff denied that defendant gave him an oral or written estimate at any time. He testified that defendant "* * * just said the insurance would take care of it." Although defendant's chief officer and mechanic described plaintiff's houseboat as a "do-it-yourself nightmare," he acknowledged that he could have put the houseboat in good working order for $10,000.
While defendant offered three worksheets noting labor, parts and charges as exhibits, they do not contain the required information set forth in Ohio Adm. Code
Although the record contains no evidence of the houseboat's diminished fair market value by use of used parts, the record does establish that the trial court, in assessing damages, accepted plaintiff's evidence showing the sum of $2,743 spent for repairs to correct the defendant's defective work and painting, and deducted $700, representing a credit for rug installation which plaintiff admitted was refunded by defendant. Where personal property is damaged, the reasonable cost or value of repairs is a proper measure of damages. Buckeye Molding Co.v. General Tel. Co. of Ohio (Dec. 12, 1979), Clinton App. No. 388, unreported. Evidence of the reasonable cost of repairs is sufficient to sustain a judgment in an amount equal to the cost of repair. Youkilis v. Owens (Sept. 13, 1978), Hamilton App. No. C-77385, unreported.
Sitting as the trier of the facts, the trial court must weigh the evidence and determine credibility of the witnesses. A reviewing court will not reverse a judgment where, as here, there is substantial evidence upon which the trial court could reasonably conclude that the elements of a prima facie case were established by a preponderance of the evidence. See Ross v. Ross
(1980),
In its second assignment of error, defendant contends that the trial court erroneously awarded attorney fees because plaintiff failed to prove that any violation of the Consumer Sales Practices Act by defendant was done *43
knowingly as required by R.C.
"`Knowledge' means actual awareness, but such actual awareness may be inferred where objective manifestations indicate that the individual involved acted with such awareness."
The record contains sufficient evidence to support the trial court's conclusion that defendant knowingly violated Ohio Adm. Code
However, the evidence is insufficient to support the amount of attorney fees awarded by the trial court. Pursuant to R.C.
In its third assignment of error, defendant contends that the trial court erroneously rejected its evidence which established that plaintiff did not afford it an opportunity to cure any alleged defects as required by R.C.
The trial court's judgment is affirmed as to the defendant's first and third assignments of error, but reversed as to the second assignment of error, and this cause is remanded solely for a hearing and determination on the issue of the amount of attorney fees to be awarded to plaintiff.
Judgment affirmed in part,reversed in partand cause remanded.
SHANNON, P.J., UTZ and GORMAN, JJ., concur.