MICHAEL GELETKA v. MICHAEL RADCLIFF
No. 110988
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
July 21, 2022
2022-Ohio-2497
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 21, 2022
Civil Appeal from the Parma Municipal Court Case No. 20CVF016011
Appearances:
James E. Boulas Co., L.P.A., and James E. Boulas, for appellee.
Law Offices at Pinecrest and David A. Corrado, for appellant.
{11} Defendant-appellant Michael Radcliff (“Radcliff“) appeals the trial court‘s decision to grant plaintiff-appellee Michael Geletka‘s (“Geletka“) motion for summary judgment, the dismissal of Radcliff‘s counterclaims, and the dismissal of Geletka‘s breach-of-contract claim. We affirm the trial court‘s decision.
{12} Geletka and Radcliff had an agreement for the replacement of Radcliff‘s roof. On June 2, 2020, Geletka filed a pro se small-claims complaint against Radcliff alleging that Radcliff owed him a cancellation fee. On July 8, 2020, in response, Radcliff filed a counterclaim alleging that Geletka violated the Ohio Home Solicitation Sales Act (“HSSA“) and the Ohio Consumer Sales Practices Act (“CSPA“). Radcliff also accused Geletka of fraud and defamation, and sought a declaratory judgment. Both Geletka and Radcliff moved for summary judgment. On October 15, 2021, the trial court granted both motions and dismissed the entire case.
I. Facts and Procedural History
{13} Radcliff, a former neighbor of Geletka for 15 years, purchased a home around the corner from Geletka that sustained some hail damage to the roof. On April 10, 2020, Radcliff and Geletka met at Radcliff‘s home, where they inspected the damage to the roof. Geletka advised Radcliff that there was sufficient damage to the roof to file an insurance claim with Radcliff‘s homeowner‘s insurance company.
{14} On the same day as the inspection, Radcliff signed an authorization for Geletka to communicate with the insurance company for the purpose of obtaining a payout to repair the damage to the roof. According to Radcliff, Geletka owned and operated a roofing company called Independent Roofing & Gutters (“IRG“). Radcliff claimed that IRG is an unregistered company that was not permitted to perform roof repairs in the city of Parma. Radcliff also claimed that IRG did not provide proof of insurance that would cover any work performed on the property.
{15} Despite this, Radcliff claimed that Geletka pressured him to sign a contract, agreeing that Geletka would repair his roof. According to Radcliff, the agreement did not contain the cost of services or how payment was to be remitted to Geletka. Radcliff claimed that the agreement stated that Geletka, as the sole employee of the business, would be the only contractor to perform the work. In addition, the agreement also contained a cancellation clause in the event that Radcliff used another contractor stating that a cancellation fee of $1,000 plus 30 percent of replacement cost value approved by Radcliff‘s insurance company would be assessed by IRG. Radcliff also claimed that the agreement failed to include any statement on his right to cancel as required by the HSSA.
{17} On June 2, 2020, Geletka filed a small claims complaint, arguing that Radcliff owed him a cancellation fee. On June 18, 2020, Radcliff sent Geletka an email stating that he was cancelling any agreement he had with Geletka concerning his property under the HSSA. On July 7, 2020, Radcliff filed his answer to Geletka‘s complaint and a counterclaim alleging that Geletka violated both the HSSA and the CSPA. In Radcliff‘s counterclaim, he also accused Geletka of fraud, defamation, and having an affair with Radcliff‘s wife. Geletka argued that Radcliff is not married.
{18} On July 30, 2020, Geletka offered to dismiss his complaint if Radcliff would dismiss his counterclaim. Geletka argued to Radcliff that Radcliff had not paid him any money. Radcliff did not respond to the offer. On February 4, 2021, Geletka filed a motion for summary judgment on Radcliff‘s counterclaim. On September 2, 2021, Radcliff filed a motion for summary judgment on Geletka‘s complaint. On October 15, 2021, the trial court granted both motions and dismissed the entire case.
For the reasons set forth in “plaintiff‘s motion for summary judgment as to defendant‘s counterclaim” filed on February 4, 2021, said motion is granted. Defendant‘s counterclaim is dismissed.
For the reasons set for in “defendant‘s motion for summary judgment” filed on September 2, 2021, at page 5, this court finds this case involves “a single cause of action based on a written contract that admittedly does not exist.” As such, plaintiff‘s case is dismissed.
Case dismissed. Counterclaim dismissed. Parties shall bear their respective costs.
Final. No just cause for delay.
Journal Book, p. 301-200 (Oct. 13, 2021).
{110} Radcliff filed this appeal and assigned three errors for our review:
- The trial court committed reversible error in awarding Geletka‘s summary judgment on Radcliff‘s counterclaims because he failed to carry his burden as the moving party and point to specific evidence establishing there were no genuine issues of material fact;
- The trial court committed reversible error by summarily awarding Geletka‘s summary judgment on Radcliff‘s counterclaims without considering Radcliff‘s opposing brief and evidentiary quality material, which met his reciprocal burden as the nonmoving party, and which raised genuine issues of material fact and warranted the granting of judgment in favor of Radcliff; and
- Radcliff submitted evidentiary quality materials that warranted the granting of judgment in favor of Radcliff on his counterclaims.
{111} For clarity and ease of discussion, we will address the assignment of errors together.
A. Standard of Review
{12} Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to
{13} The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact as to the essential elements of the case with evidence of the type listed in
B. Law and Analysis
{114} In Radcliff‘s first assignment of error, he argues that the trial court erred when it granted Geletka‘s motion for summary judgment. Specifically,
{115} “In order for a valid contract to exist, there must be mutual assent, an offer and acceptance of the offer, and consideration.” Butcher v. Bally Total Fitness Corp., 8th Dist. Cuyahoga No. 81593, 2003-Ohio-1734, ¶ 28, citing Nilavar v. Osborn, 127 Ohio App.3d 1, 711 N.E.2d 726 (1998). “An enforceable contract requires these elements to be met; therefore, if there is no meeting of the minds, the contract has not been formed.” Id., citing McCarthy, Lebit, Crystal & Haiman Co. L.P.A. v. First Union Mgt., 87 Ohio App.3d 613, 622 N.E.2d 1093 (May 6, 1993).
{16} “The definition of ‘consideration’ is that a promisor received something of value in exchange for what was given up. If there is no consideration, a promise is illusory and void.” Id. at ¶ 30, citing Floss v. Ryan‘s Family Steakhouses, Inc., 211 F.3d 306 (6th Cir. 2000). Geletka did not receive anything of value from Radcliff, because there was no consideration. Thus, a contract between Radcliff and Geletka did not exist. Geletka never performed any work for Radcliff, and Radcliff never paid for Geletka‘s service. Therefore, the trial court did not err in deciding that a contract did not exist between the parties.
{17} Radcliff also argues that he provided relevant evidence to demonstrate that the contract failed to properly include any statement on the buyer‘s right to cancel as required by
In connection with every home solicitation sale:
(1) The following statement shall appear clearly and conspicuously on the copy of the contract left with the buyer in bold-face type of the minimum size of ten points, in substantially the following form and in immediate proximity to the space reserved in the contract for the signature of the buyer: “You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation for an explanation of this right.[ “]
{18} Although Geletka failed to include this provision in the agreement, it was already determined that Radcliff did not have a contract with Geletka. Radcliff cancelled the agreement through email, and the trial court did not award Geletka a cancellation fee. Radcliff does not demonstrate that a genuine issue of material fact existed. “A genuine issue of material fact exists when the relevant factual allegations contained in the documentary evidence attached to a summary judgment motion and opposition brief are in conflict.” Link v. Leadworks Corp., 79 Ohio App.3d 735, 741, 607 N.E.2d 1140 (8th Dist.1992), citing Duke v. Sanymetal Co., 31 Ohio App.2d 78, 286 N.E.2d 324 (1972).
{19} The allegations made by Radcliff are not in conflict with Geletka‘s arguments. Both agree that the written agreement did not contain the necessary provision. However, there was never a contract between the two, services were not rendered, and nothing of value was exchanged. Therefore, the trial court did not err in dismissing Radcliff‘s counterclaim regarding his HSSA claims.
{1|21} “A ‘consumer transaction’ is defined in
R.C. 1345.01 defines a consumer transaction to include a solicitation to provide services, which necessarily occurs before a transaction is commenced or consummated. Similarly, a violation of the CSPA underR.C. 1345.02(A) includes deceptive practices that occur before the transaction.
Ferron v. Fifth Third Bank, 10th Dist. Franklin No. 08AP-473, 2008-Ohio-6967, ¶ 10.
{22} Radcliff has not provided evidence that Geletka violated the CSPA with deceptive practices.
In general, the CSPA defines “unfair or deceptive consumer sales practices” as those that mislead consumers about the nature of the product they are receiving, while “unconscionable acts or practices” relate to a supplier manipulating a consumer‘s understanding of the nature of the transaction at issue.
{123} Radcliff asserts that Geletka convinced him that Geletka was going to perform the work himself, while Geletka argues that Radcliff knew he was going to hire someone else to repair the roof. We determine that Radcliff‘s assertion does not rise to the level of unconscionable acts or practices that relate to Geletka manipulating his understanding of the nature of repairing the roof.
In determining whether an act or practice is deceptive for purposes of the CSPA, the question is whether the supplier did or said something, regardless of intent, that has the likelihood of inducing in the mind of a consumer a belief that was not in accord with the facts.
Lester v. FCA US LLC, 1st Dist. Hamilton Nos. C-210532 and C-210536, 2022-Ohio-1776, ¶ 37, citing Frank v. WNB Group, LLC, 2019-Ohio-1687, 135 N.E.3d 1142, ¶ 26 (1st Dist.).
{24} “For conduct to be deceptive under the CSPA, it must be both false and material to the consumer transaction.” Id., citing Grgat v. Giant Eagle, Inc., 2019-Ohio-4582, 135 N.E.3d 846, ¶ 16 (8th Dist.). Radcliff has not demonstrated that Geletka‘s claims were deceptive, false, or material to the consumer transaction. Therefore, the trial court did not err in dismissing Radcliff‘s counterclaim regarding a violation of the CSPA.
{26} Therefore, the trial court did not err in dismissing Radcliff‘s counterclaim regarding attorney fees.
{27} Radcliff argues that the trial court erred in dismissing his counterclaim against Geletka for fraud. “A plaintiff must state the circumstances constituting fraud with particularity.” Kobal v. Edward Jones Secs., 8th Dist. Cuyahoga No. 109753, 2021-Ohio-1088, ¶ 16, citing
(1) a representation or, where there is a duty to disclose, omission of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance.
Id. at ¶ 15, citing Russ v. TRW, Inc., 59 Ohio St.3d 42, 49, 570 N.E.2d 1076 (1991).
{29} A review of the record reveals that Radcliff has not demonstrated that he has been injured by his reliance upon any of Geletka‘s statements. Radcliff argues that Geletka‘s statements regarding being the sole person to perform the roof repairs, Geletka‘s failure to provide proof of insurance and a business registration, and Geletka‘s subsequent lawsuit all resulted in Radcliff‘s injuries. However, the record shows that Radcliff hired another company to repair his roof because he received a better warranty from the new company.
{1|30} Radcliff also argues that taking time off from work in order to attend court proceedings are injuries that he suffered. However, he has not demonstrated that this injury was caused by his reliance on Radcliff‘s representations. Therefore, the trial court did not err by dismissing Radcliff‘s counterclaim for fraud.
{31} Radcliff argues that the trial court erred in dismissing his counterclaim for defamation. In order to prevail on a defamation claim, Radcliff must prove five elements: 1) a false statement; 2) about Radcliff; 3) published to a
{132} Radcliff contends that Geletka defamed him around the neighborhood, to the police, and to the animal control board stating that Radcliff was poisoning and drowning cats in the neighborhood. Radcliff claims that his reputation suffered around the neighborhood as a result of these claims. Radcliff has failed to demonstrate that he experienced public hatred, contempt, ridicule, shame, or disgrace. Therefore, the trial court did not err in dismissing Radcliff‘s claims for defamation.
{133} Radcliff‘s argues that he has set forth sufficient evidence on each of his claims that preclude him to a statutory right to a declaratory judgment. In order to properly plead a complaint seeking declaratory relief, Radcliff must demonstrate that “(1) the action is within the scope of the Declaratory Judgment Act; (2) a justiciable controversy exists between adverse parties; and (3) speedy relief is necessary to preserve rights that may otherwise be impaired.” Tabbaa v. Lexpro, L.L.C., 8th Dist. Cuyahoga Nos. 109690 and 109691, 2020-Ohio-5514, ¶ 5, citing
{134} Radcliff has not demonstrated that a controversy exists between him and Geletka. Geletka did not prevail on his claims because the trial court dismissed the case. Therefore, the trial court did not err in dismissing Radcliff‘s request for declaratory judgment.
{1|35} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Parma Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
ANITA LASTER MAYS, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION)
{1|36} I concur in judgment only with the majority‘s decision. Geletka and Radcliff entered into a legally enforceable agreement consisting of four documents signed by both parties, all of which were attached to the small claims complaint. Those documents included all material terms of the parties’ agreement that Geletka would repair and replace Radcliff‘s roof for $17,672.17, of which Radcliff would be responsible for the $1,000 deductible and an approximately $3,000 shortfall between the insurer‘s projected payout and the total replacement cost.
{137} In the first of the signed documents, Radcliff authorized Geletka to act as Radcliff‘s agent for the purposes of pursuing the roof replacement claim with Radcliff‘s insurer. That document included the partial notice under
{139} On April 29, Geletka purchased approximately $5,000 in materials in anticipation of performing the repair work under the terms of the contract. By May 4, Geletka was informally notified that Radcliff decided to use another contractor, who was paid approximately $20,000 by the insurer for the roof-replacement services, but that contractor also covered Radcliff‘s $1,000 deductible through sales promotions. Geletka was able to return the purchased materials but, thereafter, sought enforcement of the cancellation clause of the contract.
{1|40} After Geletka filed the small claims complaint in early June, and thus properly commenced a breach-of-contract claim upon the then-binding contract, Radcliff sent an email allegedly cancelling “all of my contracts/agreements with you” under Ohio‘s Home Solicitation Sales Act (“HSSA“). It is, therefore, undisputed that Radcliff failed to properly avail himself of the rescission clause on May 4 when he backed out of the contract after Geletka had purchased materials.
{141} Radcliff‘s arguments in this appeal are limited. In the first and second assignments of error, Radcliff claims that Geletka failed to demonstrate entitlement to summary judgment because Geletka relied on conclusory statements without presenting evidence in support of his claims and that the trial court failed to consider Radcliff‘s brief in opposition. Notwithstanding the fact that the parties’ deposition transcripts and affidavits were included with their respective motions that are part of the record, Radcliff‘s argument are unavailing. Radcliff has not demonstrated entitlement to relief in this appeal other than presenting his own conclusory statements that ignore the evidence presented in support of the motions for summary judgment. An appellant bears the burden of demonstrating reversible error, beyond providing conclusory statements. In re Application of 6011 Greenwich Windpark, L.L.C., 157 Ohio St.3d 235, 2019-Ohio-2406, 134 N.E.3d
{42} But nevertheless, Radcliff elected the remedy of rescission, under
{1|43} Once Radcliff exercised his right to rescind the contract, he no longer was able maintain a claim under the CSPA or seek attorney fees incurred in defending the action.4 And further, the only CSPA and HSSA claims advanced in
{144} Rescission of the contract between Radcliff and Geletka was the remedy for Radcliff‘s counterclaim that precluded Geletka from asserting his right to the cancellation fee as agreed to by the parties. There are no allegations in the counterclaim asserting damages for Geletka maintaining the lawsuit after the rescission was deemed valid. Those claims were first asserted in Radcliff‘s motion for summary judgment. A party, “however, cannot assert a claim on summary judgment that was not contained within the complaint.” Crenshaw v. Cleveland Law Dept., 8th Dist. Cuyahoga No. 108519, 2020-Ohio-921, ¶ 61; Tchankpa v. Ascena Retail Group, Inc., 10th Dist. Franklin No. 19AP-760, 2020-Ohio-3291, ¶ 25 (collecting cases holding that new claims cannot be presented in order to demonstrate triable issues of fact in summary judgment proceedings without amending the complaint).
{1145} Summary judgment upon the CSPA and HSSA claims in Geletka‘s favor was appropriate since Radcliff, after invoking
{46} Radcliff‘s arguments with respect to the fraud, defamation, and declaratory judgment claims are equally unavailing.
{147) Radcliff argues that summary judgment was improper as to the fraud because Geletka misled him into thinking Geletka would perform the repair work and that he was properly licensed and bonded. In order to state a claim for fraud, Radcliff must in part present evidence of a representation or concealment of a fact that is material to the transaction and justifiable reliance on that falsity or concealment resulting in actual damages. Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 61, quoting Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170. Radcliff has no evidence of reliance, much less justifiable reliance, or damages sufficient to demonstrate error below.
{48} In Radcliff‘s deposition testimony, included within the appellate record, Radcliff expressly stated that he understood that Geletka would not personally perform the repair work, that Radcliff did not actually pay for the ultimate roof repair, both of which only occurred because Radcliff did not rely on Geletka‘s alleged representations, and that Radcliff hired another contractor before
{1|49} With respect to Radcliff‘s arguments pertaining to the defamation and declaratory judgment claims, Radcliff‘s sole argument is limited to a single paragraph of analysis for each argument, in which Radcliff concludes that the trial court erred because the undisputed evidence was in his favor on whether Geletka uttered false statements and whether Radcliff suffered injury and that an injunction is necessary to protect Radcliff from the lawsuit over a “nonexistent contract.” Those brief and summary conclusions are insufficient to demonstrate error or warrant further discussion.
{150} For the foregoing reasons, I agree with the majority‘s outcome.