589 N.E.2d 474 | Ohio Ct. App. | 1990
In this appeal we are asked to determine whether alleged violations of R.C. Chapter 1345, the Consumer Sales Practices Act, may be set forth as affirmative defenses to an action for payment of an account arising from the sale transaction that produced the alleged violation. The trial court found that the Act did not provide an affirmative defense. We agree, and we will affirm the judgment of the trial court.
Following their first meetings, the staff of Atelier and the Campbells met on about seven occasions to discuss design proposals. The Campbells offered their ideas and also wrote and called Atelier concerning changes requested.
In December 1986, Atelier presented its preliminary design drawings to the Campbells. In April 1987, the Campbells indicated their approval of the preliminary design. On April 10, 1987, Campbell wrote a letter to Gulickson commending him and his staff on a fine job. On April 20, 1987, Campbell presented a memorandum requesting further changes. At the end of April, Atelier sent a bill in the amount of $1,329.75 to Campbell, which was subsequently paid.
On July 6, 1987, Atelier presented its working drawings to Campbell, representing the final product. Campbell accepted the working drawings and at the time voiced no complaints. Thereafter, Atelier sent Campbell a bill for an additional $2,322.71 for architectural and design services. That bill has never been paid, and is the subject of the action on an account brought by Atelier against Campbell in Kettering Municipal Court.
Gulickson explained that the final bill exceeded his original estimate that the fees would range from $1,500 to $2,500 because of his own "misjudgment" and additions or changes requested by Campbell and his wife. Gulickson presented time sheets showing the hours of work performed on the project by Atelier's staff. He claims that there was no cost guarantee and no condition of satisfaction attached to the agreement. He confirmed that the agreement was entirely oral and that nothing had been reduced to writing concerning his fees.
Lynn Campbell, wife of Donald Campbell, testified that they found the plans prepared by Atelier to be unacceptable for two reasons. First, because the final plans contained a far more elaborate front entrance for the residence than the Campbells wanted, they requested changes to make it conform to their desires. Second, and more important, the house as designed was not properly situated on its lot and required extensive modifications to make the best use of the site. Mrs. Campbell explained throughout that they had no difficulty with the floor plan, but that after the front elevations of the design were presented and the plans were compared to the site, the difficulties she described became more apparent. The plans were thus worthless and were of no value to her. The Campbells were then required to engage another architect and pay fees for his services in the amount of $4,771. The Campbells have not used the plans provided them by Atelier. *727
On January 4, 1989, Atelier filed a complaint in Kettering Municipal Court asking judgment against Donald Campbell in the amount of $2,322.71. Donald Campbell filed an answer denying the allegation and asserting as affirmative defenses that Atelier's fees were excessive and beyond the limits quoted by Gulickson to Campbell, that the plans were not acceptable to Campbell and did not conform to his requested changes, and that Atelier's conduct was in violation of R.C. Chapter 1345, the Consumer Sales Practices Act.
The complaint was heard by the Kettering Municipal Court on April 11, 1989. The trial court excluded any evidence of violation of the Act upon a finding that the consumer relief provisions of the Act could be used only as a claim or counterclaim and not as an affirmative defense as used by Campbell in his answer.
On May 25, 1989, the court issued its decision and judgment entry finding for Atelier, and granting a judgment in the amount of prayed. On June 5, 1989, Donald Campbell filed a timely notice of appeal.
R.C.
An affirmative defense is in the nature of a confession and avoidance. It admits the claim but asserts some reason in law why the plaintiff cannot have recovery on it.
Civ.R. 8(C) identifies "illegality" as an affirmative defense. R.C.
While the provisions of the Consumer Sales Practices Act must be construed liberally to accomplish the purposes of the General Assembly, the scope of the relief provided must be determined exclusively from the provisions of the statute. R.C.
We hold that the relief provisions of R.C.
This holding does not, of course, concern counterclaims based on the same grounds. A counterclaim alleging a violation of the Act will lie, subject to the limitations of the Act.
Defendant-appellant's first assignment of error is overruled.
If an architect renders services pursuant to an express contract, the amount of his compensation is to be determined by the terms of the contract. Owens v. Wilmington (1921),
Testimony was offered from Kent Sidle, a registered architect, who testified that the fees charged by Atelier were reasonable and average or below average for the market area.
Mrs. Lynn Campbell testified that the fee quoted by Gulickson was $1,550 to $2,500. She stated that after receipt of the plan that the Campbells were dissatisfied with the elaborate front entrance provided for the placement of the house on the lot that they owned. Because of those defects, the Campbells ultimately retained the services of another architect who designed their home. His design services cost $4,771.
Campbell's second assignment of error argues, in essence, that the judgment of the trial court is not supported by the manifest weight of the evidence. In a civil action, an appellate court may not find a judgment to be against the manifest weight of the evidence if such judgment is supported by some competent, credible evidence. C.E. Morris Co. v. Foley Constr. Co. (1978),
The testimony of Gulickson and other witnesses would reasonably support a finding by the trial court that the original figure of $1,500 to $2,500 was only an estimate and that additional design changes requested by the Campbells caused the fee reasonably owed to the architect to increase above the estimate given. Such evidence was competent and credible, and we cannot find that the trial court erred in choosing to believe it rather than the version advanced by the Campbells. Appellant's second assignment of error is overruled.
Judgment affirmed.
BROGAN and FAIN, JJ., concur. *730