DENNIS D. NYE, ET AL., PLAINTIFFS-APPELLEES, v. CYNTHIA K. WHITE-RHOADES, DEFENDANT-APPELLANT, -аnd- WAYNE RHOADES, DEFENDANT-APPELLEE, v. CORY NYE, THIRD-PARTY DEFENDANT-APPELLEE.
CASE NO. 9-15-04
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
September 14, 2015
[Cite as Nye v. White-Rhoades, 2015-Ohio-3719.]
Appeal from Marion County Common Pleas Court Trial Court No. 08-CV-0582
Judgment Affirmed
APPEARANCES:
Jeff Ratliff for Appellant
Kevin P. Collins for Appellee
{¶1} Defendant-Appellant, Cynthia K. White-Rhoades (“Cynthia“), appeals the December 21, 2012 and May 8, 2013 judgment entries of the Court of Common Pleas of Marion County. In its May 8, 2013 judgment entry, following a bench trial, the trial court awarded Plaintiff-Appellee, Dennis D. Nye (“Dennis“), judgment in the amount of $20,790.35 against Cynthia. $20,790.35 represented the amount that the trial court concluded Cynthia owed Dennis ($22,131.67), offset by the amount Dennis owed Cynthia ($1,341.32). On appeal, Cynthia argues that the trial court erred in finding that Dennis did not violate the Consumer Sales Practices Act (“CSPA“); and by failing to award damages Cynthia sought in her counterclaim. For the reasons that follow, we affirm the trial court‘s decision.
{¶2} This case stems from a home-improvement project between relatives that went awry. Cynthia‘s husband, Defendant-Appellee, Wayne Rhoades (“Wayne“), is the half-brother to Dea Nye (“Dea“), the wife of Dennis‘s son, Third-Party Defendant-Appellee, Cory Nye (“Cory“). (Feb. 6, 2012 Tr. at 134). Wayne and Cynthia learned at a family get-together that Cory‘s father, Dennis, owned a construction business, so Wayne told Cory that he and Cynthia were thinking of renovating their house in Marion, Ohio. (Id.); (Feb. 7, 2012 Tr. at
{¶3} In July 2007, Dennis and Cory commenced work at Cynthia and Wayne‘s house, with Cory serving as the worksite foreman and Dennis frequently absent from the worksite. (Feb. 6, 2012 Tr. at 33, 93-94). Work on the home continued until February 19, 2008, including many home improvements not included in the rough estimate. For example, Dennis and Cory built and installed a sink in Cynthia and Wayne‘s basement (id. at 55, 155); built a new front porch (id. at 60, 148); purchased and installed a new sump pump (id. at 63, 155); moved a door in the garage (id. at 64, 156); and installed hardwood floors (id. at 66, 156). All of these improvements were not included in the rough estimate.
{¶4} Dennis sent invoices to Cynthia and Wayne each month. (Id. at 28). Cynthia and Wayne paid each invoice that was billed for the work completed in 2007.
{¶5} In November 2007, in a meeting between Dennis, Cynthia, and Cynthia‘s father, John White (“John“), John requested that Dennis provide an accounting of the work performed. (Feb. 7, 2012 Tr. at 390-391). In response, Dennis supplied a document, which Cynthia described as “an estimate for things that were already done.” (Id. at 391). After getting advice from her father, Cynthia decided to stop paying the invoices. (Id. at 392). Therefore, Cynthia did not pay the invoice for January or February of 2008. (Feb. 6, 2012 Tr. at 39, 41). The amount of the January 2008 invoice totaled $18,791.10 and the February 2008 invoice, which accounted for all the work completed up until February 19, 2008, totaled $3,340.67. (Id. at 39, 41, 43-44).
{¶6} On July 17, 2008, Dennis “dba Dennis Nye Construction” filed a “complaint on contract” against Cynthia and Wayne, and the case was assigned case number 08-CV-0582. (Docket No. 1). Dennis alleged that he entered into “multiple agreements” with Cynthia and Wayne “to do certain remodeling work” at Cynthia and Wayne‘s residence. (Id.). Dennis alleged that he performed work under the agreements until Cynthia and Wayne refused to pay for materials and labor. (Id.).
{¶7} Cynthia and Wayne filed their answer, counterclaim, and third-party complaint on July 24, 2008. (Docket No. 4). In their answer, Cynthia and Wayne alleged Dennis‘s “claims are barred and must be eliminated by recoupment or set
{¶8} Dennis and Cory filed their answers to the counterclaim and third-party complaint on August 26, 2008 and then, with leave of court, filed amended answers on January 29, 2009. (Docket Nos. 9, 17).
{¶9} On March 3, 2009, the trial court consolidated case number 08-CV-0996, Central Mutual Insurance Company (“Central Mutual“), et al. v. Dennis Nye, et al., with case number 08-CV-0582. (Docket No. 18).
{¶10} On October 15, 2009, Dennis and Cory filed a joint motion for summary judgment. (Docket No. 33). On November 25, 2009, Cynthia, Wayne, and Central Mutual filed a joint response to Dennis and Cory‘s motion for summary judgment. (Docket No. 50). Dennis and Cory filed their reply on December 24, 2009. (Docket No. 53). In an April 7, 2010 entry, the trial court denied Dennis and Cory‘s motion for summary judgment. (Docket No. 67).
{¶11} On February 22, 2010, Dennis and Cory filed a motion to enforce a purported settlement agreement between Central Mutual, Cynthia, and Dennis. (Docket No. 58). Central Mutual filed its response in opposition on March 1, 2010. (Docket No. 62). Dennis and Cory filed their reply the next day. (Docket No. 64). Central Mutual filed a surreply on March 9, 2010. (Docket No. 66). In its April 7, 2010 entry, the trial court denied Dennis and Cory‘s motion to enforce the purported settlement agreement. (Docket No. 67).
{¶12} On July 26, 2010, Owners Insurance Company (“Owners Insurance“) moved to intervene “for the purposes of filing an intervening complaint for declaratory judgment, pertaining to issues of insurance coverage.” (Docket No. 69). Dennis and Cory filеd a response on August 17, 2010, objecting to Owners Insurance‘s intervention. (Docket No. 74). Owners Insurance filed its reply on August 27, 2010. (Docket No. 75). On February 16, 2011, the trial court granted Owners Insurance‘s motion to intervene and allowed it to file its complaint for a declaratory judgment stating that it had no duty to indemnify Dennis and Cory. (Docket Nos. 95-97).
{¶13} After the parties conducted discovery and after multiple continuances of the trial, a bench trial was held on February 6, 7, 8, and 9, 2012. (See Docket Nos. 123-126.5).
{¶14} On September 20, 2012, the trial court ordered that the parties “submit memorandums in support of their respective positions (closing arguments).” (Docket No. 127). Cynthia and Wayne filed their “summary of case and final arguement [sic]” on October 23, 2012. (Docket No. 130). Dennis and Cory filed their memorandum in support of their positions on November 21, 2012. (Docket No. 132).
{¶15} On December 21, 2012, the trial court filed an entry awarding “judgment in favor of the Plaintiff in the amount of $20,790.35 ($22,131.67 less $1,341.32 off-set).” (Docket No. 133). The trial court also found that “the Plaintiff, in its memorandum” admitted that Wayne “should be dismissed at [sic] a party-defendant since the real estate in this case is in the name of [Cynthia].” (Id.). Finally, the trial court found “that any and all responsibility on behalf of the Plaintiff [sic], Cory Nye, is not appropriate and he should be dismissed from this case.” (Id.).
{¶16} On December 28, 2012, Cynthia and Wayne requested that the trial court state “in writing its findings of fact found separately from its conclusion of law in support of its judgment in this case.” (Docket No. 134). The trial court denied Cynthia and Wayne‘s request on January 25, 2013, concluding that
{¶17} One week earlier, on January 18, 2013, Cynthia filed a notice of appeal of the trial court‘s December 21, 2012 entry. (Docket No. 135). On February 19, 2013, we dismissed Cynthia‘s appeal because the December 21, 2012 entry was not a final, appealable order for the reason that it entered judgment as to one but fewer than all of the parties and claims. (See Docket No. 139); Nye, et al. v. White-Rhoades, et al., Case No. 9-13-03 (JE, Feb. 19, 2013).
{¶18} On May 8, 2013, the trial court filed an entry awarding Dennis judgment against Cynthia in the amount of $20,790.35, representing $22,131.67 owed to Dennis by Cynthia “less an offset judgment in the amount of $1,341.22 [sic] owed by [Dennis] to [Cynthia] arising out of her counterclaim.” (Docket No. 142). In rendering that judgment, the trial court relied on reasons set forth in its December 21, 2012 entry. (Id.). The trial court dismissed Wayne as a party defendant because “the real estate at issue was solely owned by [Cynthia].” (Id.). The trial court dismissed Cynthia and Wayne‘s third-party complaint against Cory. (Id.). The trial court dismissed Central Mutual and Cynthia‘s complaint against Dennis and John Doe, employee. (Id.). Finally, the trial court dismissed Owners Insurance‘s intervening complaint that because the trial court did not render
{¶19} Cynthia appealed the trial court‘s May 8, 2013 entry on June 4, 2013. (Docket No. 143). However, on June 9, 2014, we dismissed Cynthia‘s appeal because the May 8, 2013 entry was still not a final, appealable order. Specifically, we found that the trial court did not dispose of Cynthia‘s slander of title count and because it appeared that it “awarded Cynthia $1,341.22 on legal theories other than slander of title and violation of the CSPA.” Nye, et al. v. White-Rhoades, et al., Case No. 9-13-28 (JE, June 9, 2014).
{¶20} On January 2, 2015, the trial court filed another judgment entry in this case. In this judgment entry, the court awarded Dennis $20,790.35, which represented the amount owed to Dennis by Cynthia, less “an offset judgment in the amount of $1,341.22 owed by Plaintiff Dennis D. Dye [sic] to Dеfendant Cynthia K. White-Rhoades arising out of her First Counterclaim for slander of title. The sum of $1,341.22 represents damage caused by Plaintiff to the value of the property due to the defective workmanship outlined in this Court‘s December 21, 2012 Journal Entry.” (Docket No. 153, p. 2-3).
{¶21} Cynthia timely appealed this judgment, presenting the following assignments of error.
THE TRIAL COURT FAILED TO FIND THAT PLAINTIFFS-APPELLEES ENGAGED IN A DECEPTIVE SALE PRACTICE AND VIOLATED THE CONSUMER SALES PRACTICE ACT.
Assignment of Error No. II
THE TRIAL COURT FAILED TO PROPERLY AWARD DAMAGES SOUGHT IN DEFENDANTS-APPELLANTS’ COUNTERCLAIM.
Assignment of Error No. I
{¶3} In her first assignment of error, Cynthia argues that the trial court erred by suggesting that the home improvements were outside the scope of the CSPA because the “entire arrangement was, at best, informal” and between family members. (Docket No. 133). Cynthia argues that the trial court should have found the CSPA applicable to this transaction and that Dennis “engaged in deceptive sales practices in various ways.” We disagree.
{¶4} On appeal, Cynthia specifically argues that Dennis committed deceptive practices by: charging for travel time; failing to divulge the addition of a one-percent surcharge for “shop materials“; underestimating the estimated cost of the home improvements; failing to provide Cynthia a written, itemized list of repairs performed or services rendered; and failing to “oversee[ ] the job site and provid[e] personal supervision to [Dennis‘s] employee when he promised such at the time he entered into the agreement with [Cynthia and Wayne] to make home
{¶5} When reviewing a trial court‘s judgment following a bench trial, an appellate court applies a manifest-weight standard of review. Terry v. Kellstone, Inc., 6th Dist. Erie No. E-12-061, 2013-Ohio-4419, ¶ 12; Patterson v. Patterson, 3d Dist. Shelby No. 17-04-07, 2005-Ohio-2254, ¶ 26. See also Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 7-23. “The standard of review for manifest weight is the same in a civil case as in a criminal case.” Terry at ¶ 12, citing Eastley at ¶ 17.
{¶6} When applying the manifest-weight standard of review, the reviewing court reviews the entire record, ” ‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” Eastley at ¶ 17, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). See also Terry at ¶ 12, quoting State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 220 and State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), superseded by statute on other grounds as stated by State v. Smith, 80 Ohio St.3d 89 (1997).
{¶7} “Under the manifest weight standard of review, we are ‘guided by a presumption’ that the fact-finder‘s findings are correct.” Id., citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80 (1984). See also Eastley at ¶ 21; Patterson at ¶ 26. We must make ” ‘every reasonable intendment and every reasonable presumption * * * in favor of the judgment and the finding of facts.’ ” Eastley at ¶ 21, quoting Seasons Coal Co. at 80, fn. 3. ” ‘If the evidence is susceptible of more than one construction,’ ” we are ” ‘bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.’ ” Id., quoting Seasons Coal Co. at 80, fn. 3.
{¶8} “The CSPA states that ‘[n]o supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.’ ” Eisert v. Kantner Constr., 3d Dist. Auglaize No. 2-10-13, 2010-Ohio-4815, ¶ 19, quoting
{¶9} The CSPA defines “consumer transaction” as “a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a
{¶10} The CSPA does not define “unfair or deceptive act or practice.” Hamilton v. Ball, 4th Dist. Scioto No. 13CA3533, 2014-Ohio-1118, ¶ 35. However,
{¶11} “The CSPA is remedial in nature, having been designed to compensate for incomplete consumer remedies available at common law. * * * Thus, we must liberally construe the statute in favor of the consumer.” Anderson, 2013-Ohio-1933 at ¶ 9, citing Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 29 (1990), Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177, 2006-Ohio-5481, ¶ 11, and
{¶12} Cynthia first argues that the trial court erred by suggesting that the home improvements were outside the CSPA‘s scope based on the family relationship between Cynthia, Wayne, and Dennis. Despite this suggestion, the trial court addressed Cynthia‘s arguments concerning how she believed Dennis committed deceptive acts or practices under the CSPA, and it concluded that “there was [sic] no deceptive sales practices in this case * * *.” (Docket No. 133).
{¶13} We need not address the trial court‘s suggestion that the home improvements were outside the scope of the CSPA because we conclude that, even assuming the parties engaged in a “consumer transaction” under the CSPA, the trial court did not clearly lose its way and create such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered when the trial court concluded thаt Dennis did not commit a deceptive practice in violation of the CSPA. See Advantage Bank v. Waldo Pub, L.L.C., 3d Dist. Marion No. 9-08-67, 2009-Ohio-2816, ¶ 46, quoting Bonner v. Bonner, 3d Dist. Union No. 14-05-26, 2005-Ohio-6173, ¶ 18 (“It is a well settled rule of appellate review that ‘[a]
{¶14} Cynthia first argues that it was a deceptive practice for Dennis to charge travel time. She cites
{¶15} At trial, Dennis admitted that he did nоt include travel time in the “rough estimate” that he gave to Cynthia and Wayne at the cookout at Cory and Dea‘s house. (Feb. 6, 2012 Tr. at 91). Although Dennis could not remember precisely when he did so, he testified that he informed Cynthia and Wayne, before commencing work and at the time he discussed things such as whether Cynthia and Wayne wished him to bid the project or charge on a labor-and-material basis, that he charged for travel time. (Feb. 9, 2012 Tr. at 274); (Feb. 6, 2012 Tr. at 90-91). Cory testified that he remembered Cynthia and Wayne saying before preparation of the rough estimate, “[W]e know we might have to pay travel time * * *.” (Feb. 6, 2012 Tr. at 203-204). Dennis testified that he charged for his
{¶16} Although she does support her arguments with citations to the record, Cynthia argues that “evidence adduced at trial” illustrates that Dennis violated
{¶17} Based on this evidence, we cannot conclude that the trial court clearly lost its way concerning the travel-time portion of Cynthia‘s CSPA claim.
{¶18} Evidence in the record demonstrates that Dennis informed Cynthia and Wayne of the travel charges before commencing work (i.e. before selling household services) and at the time he asked Cynthia and Dennis if they wanted him to bid the project or charge for labor and materials (i.e. before solicitation to supply household services). (Feb. 9, 2012 Tr. at 274). Moreover, the trial court may have reasonably concluded that a “consumer transaction” did not commence when Dennis shared the rough estimate with Cynthia and Wayne because he did so at a family get-together and later offered to bid the project. (Feb. 6, 2012 Tr. at 90-91); (Feb. 9, 2012 Tr. at 274). Finally, Cory testified that before Dennis prepared the rough estimate, Cynthia and Wayne said that they knew Dennis may charge for travel time. (Feb. 6, 2012 Tr. at 203-204). While there is conflicting evidence in the record susceptible of more than one construction, we must interpret it consistently with the trial court‘s judgment, and we cannot conclude that the trial court lost its way. See Eastley, 132 Ohio St.3d 328, at ¶ 21.
{¶19} Cynthia next argues that Dennis committed a deceptive sales practice by not divulging the addition of a one percent surcharge for “shop materials.” Although she does not say so specifically, Cynthia appears to believe that Dennis
{¶20} Dennis testified that before work commenced, perhaps at Cory and Dea‘s house, he informed Cynthia that he normally marked up his materials four or five percent, but “she didn‘t like that,” so he agreed to charge only a one or two percent materials surcharge. (Feb. 6, 2012 Tr. at 27-28, 72-73); (Feb. 9, 2012 Tr. at 275-276). According to Dennis, the standard materials surcharge in the industry varies but is typically “around ten percent” when a contractor charges for labor and materials. (Feb. 6, 2012 Tr. at 72). Dennis testified that three months or so after commencing the work, and in response to “some questioning about this extra percentage,” he stopped imposing the materials surcharge and “billed what [he] was getting billed.” (Feb. 9, 2012 Tr. at 275-276). Cynthia testified that Dennis and Cory never informed her of any materials surcharge or “overcharge.” (Feb. 7, 2012 Tr. at 439-441).
{¶21} For reasons similar to those stated in our analysis above of the travel-time charge, we conclude that the trial court did not lose its way by concluding
{¶22} Cynthia also argues that Dennis violated
(D) In any consumer transaction involving the performancе of any repair or service it shall be a deceptive act or practice for a supplier to:
* * *
(11) Materially understate or misstate the estimated cost of the repair or service;
(12) Fail to provide the consumer with a written 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 * * *.
{¶23} Specifically as to
{¶24} Dennis testified, for example, that Cynthia requested stamped rather than standard concrete in the basement; a 50-year rather than 30-year roof shingle; a marbled walk-in shower rather than a standard tub-shower unit; additional and higher-grade kitchen cabinets; a bar with a sink in the basement; and three fireplaces rather than one. (Id.). The additional work necessitated material and labor not included in the estimate—for example, additional cabinets, insulation, drywall, and trim. (See id. at 53-54). The additional and upgraded kitchen cabinets alone accounted for approximately $12,500 of the $58,778 discrepancy. (Feb. 6, 2012 Tr. at 55); (Feb. 7, 2012 Tr. at 420-421). Dennis admitted that he underestimated the cost of excavation for the basement. (Feb. 6, 2012 Tr. at 46).
{¶25} Cynthia admitted on cross-examination that she directed Dennis and those working for him to perform additional work at the house, but she said there “wasn‘t a whole lot.” (Feb. 8, 2012 Tr. at 42-46). She agreed that much of the work performed by Dennis was not included in the rough estimate. (Feb. 7, 2012 Tr. at 415-432).
{¶27} Cynthia argues that Dennis violated
{¶28} Cynthia testified that she, John, and Dennis met in November 2007, and John asked Dennis to provide an accounting of work performed. (Feb. 7, 2012 Tr. at 390-391). In response, Dennis supplied a document, which Cynthia identified as Plaintiff’s Exhibit K and described as “an estimate for things that were already done.” (Id. at 391); (Feb. 8, 2012 Tr. at 40-41). Cynthia testified that she and John “didn’t get exactly what we wanted in the meeting from [Dennis] * * *.” (Id. at 40).
{¶29} Based on this evidence, we conclude that the trial court did not lose its way concerning whether Dennis failed to provide a written, itemized list of repairs performed or services rendered under
{¶30} Finally, in a single sentence, and without citing evidence in the record or legal authority, Cynthia argues that Dennis violated the CSPA by failing to “oversee[ ] the job site and provid[e] personal supervision to [Dennis’s] employee when he promised such at the time he entered into the agreement with [Cynthia and Wayne] to mаke home improvements.” (Appellant’s Brief at 16). At trial, Dennis testified that he told Cynthia “from the beginning” that “Cory would be running the job.” (Feb. 6, 2012 Tr. at 93). Dennis described Cory as “the job site foreman,” although Dennis “sometimes” acted as a supervisor, and Dennis was available if Cory had questions. (Id. at 94). Based on this testimony and Cynthia’s lack of citations to testimony to the contrary, we conclude that the trial court did not lose its way concerning whether Dennis violated the CSPA by not acting as a fulltime jobsite supervisor.
{¶31} In summary, we conclude that the trial court’s judgment concerning Cynthia’s CSPA counterclaim was not against the manifest weight of the evidence because the trial court did not clearly lose its way and create a manifest miscarriage of justice when it concluded that Cynthia failed to demonstrate that
{¶32} Accordingly, we overrule Cynthia’s first assignment error.
Assignment of Error No. II
{¶33} In her second assignment of error, Cynthia argues that the trial court “failed to properly award damages sought in [Cynthia’s] counterclaim regarding the kitchen countertop, the surcharge, the ceiling beams, the basement flooding, the concrete drive, the fireplace and gutters, and the accounting errors.” (Appellant’s Brief at 17). We disagree.
Standard of Review
{¶34} Since Cynthia is challenging the trial court’s award of damages, we will review the court’s decision under an abuse of discretion standard. Reinbolt v. Kern, 183 Ohio App.2d 287, 2009-Ohio-3492 (6th Dist.), citing Roberts v. United States Fid. & Guar. Co., 75 Ohio St.3d 630, 634 (1996), and Norfolk S. Ry. Co. v. Toledo Edison Co., 6th Dist. Lucas No. L-06-1268, 2008-Ohio-1572, ¶ 56. A trial court will be fоund to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Cynthia’s Counterclaims
{¶35} In this assignment of error, Cynthia specifically argues that the trial court failed to properly award her damages that she sought in her “counterclaim.” However, Cynthia does not tell this court from which counterclaim she is seeking damages. Cynthia and Wayne asserted only two counterclaims: slander of title and violation of the CSPA. (Docket No. 4). We concluded above that the trial court’s judgment concerning Cynthia’s CSPA counterclaim was not against the manifest weight of the evidence. Therefore, the damages Cynthia is seeking must relate to her first counterclaim for slander of title.
{¶36} “Slander of titlе to real estate is a tort action against one who falsely and maliciously defames title to property and causes some special pecuniary damages or loss.” Prater v. Dashovsky, 10th Dist. Franklin No. 07AP-389, 2007-Ohio-6785, ¶ 11, citing Hahn’s Elec. Co. v. Cochran, 10th Dist. Franklin No. 01AP-1391, 2002-Ohio-5009, ¶ 24. Typically, slander of title involves “the wrongful recording of an unfounded claim, such as a mechanic’s lien, to the property of another.” Prater, citing Green v. Lemarr, 139 Ohio App.3d 414, 433 (2d Dist.2000). To prevail on a claim of slander of title, the claimant must prove: “ ‘(1) there was a publication of a slanderous statement disparaging claimant’s title; (2) the statement was false; (3) the statement was made with malice or made with a reckless disregard of falsity; and (4) the statement caused actual or special damages.’ ” Green at 430-431, quoting Colquhoun v. Webber, 684 A.2d 405, 409 (Me.1996).
{¶37} We note that there was no evidence presented at trial concerning the mechanic’s lien Dennis filed, or that the lien was filed with a malicious intent or with a reckless disregard of falsity, or that the lien caused actual or special damages. Since the damages Cynthia seeks in this assignment of error have no relation to the only remaining counterclaim Cynthia actually pled—slander of title—we cannot say the trial court erred in failing to award her damages.
Recoupment
{¶38} It appears that the “damages” Cynthia seeks in this assignment of error relate to the fourth defense she pled in her answer where she claimed that she is entitled to “recoupment or set/off” for the shoddy manner in which work was performed on her house. (Docket No. 2, p. 2-3). At this point, we are unsure if Cynthia and the trial court are under the impression that Cynthia pled a third counterclaim, or if they are treating her affirmative defense as a counterclaim, or if
{¶39} As explained supra, the “damages” Cynthia seeks in this assignment of error do not arise from any of her two counterclaims. And despite the trial court’s use of the term “off-set” in its judgment entries, it appears Cynthia is seeking a reduction of Dennis’ damages under the legal theory of recoupment, not setoff.
{¶40} The Ohio Supreme Court has defined setoff as “that right which exists between two parties, each of whom under an independent contract owes a definite amount to the other, to set off their respective debts by way of mutual deduction.” Witham v. S. Side Bldg. & Loan Assn. of Lima, 133 Ohio St. 560 (1938). See also Am. Motorists Ins. Co. v. Olin Hunt Specialty Products, Inc., 10th Dist. Franklin No. 00AP-1313, 2001 WL 1098013, *3 (Sept. 20, 2001), citing Continental Acceptance Cor. v. Rivera, 50 Ohio App.2d 338, 344 fn. 17 (8th Dist.1976),
{¶41} “Recoupment, on the other hand, is, ‘a demand arising from the same transaction as the plaintiff’s claim.’ ” Tejeda, 2009-Ohio-3495 at ¶ 53. Generally, recoupment is “[t]he right of a defendant to have the plaintiff’s claim reduced or eliminated because of the plaintiff’s breach of contract or duty in the same transaction.” Black’s Law Dictionary 1466 (10th Ed.2014).
“ ‘[Recoupment] does not confess the indebtedness alleged in the complaint, as is understood by a setoff, but its proposition is that the plaintiff’s claim is based on a particular contract or transaction and that to entitle the plaintiff to the sum claimed, he must prove complianсe with certain obligations of the contract; that he failed to do so; and therefore that the defendant has been so damaged in the transaction that the plaintiff is not entitled to recover.’ ”
Tejeda at ¶ 54, quoting Cauffiel Mach. Co. v. E. Steel & Metal Co., 59 Ohio App.2d 1, 6 (6th Dist.1978), quoting 20 American Jurisprudence 2d 235, Counterclaim, Recoupment and Setoff, Section 11.
{¶42} This matter arose over one transaction, the remodeling contract between the two parties. Therefore recoupment, not setoff, applies. Further, because recoupment limits a plaintiff’s damages, we cannot reverse a trial court’s decision regarding its determination of damages absent a showing that the trial
{¶43} Cynthia first argues that the trial court errеd in not awarding her $12,016.18, the cost of replacing her countertop. Dennis testified a subcontractor for Style Stone installed the countertop. (Feb. 6, 2012 Tr. at 106). Dennis, Cory, and Cynthia all testified that Nye Construction was not involved with the installation of the countertop. (Id. at 106-107, 205-207, 257-258, 264-266; Feb. 8 2012 Tr. at 32-33). Cynthia stated that she did not pay Nye Construction for the countertop, but instead was invoiced by ABC. (Feb. 8, 2012 Tr., at 33).
{¶44} Cynthia argues that her expert witness, John Probst, gave his expert opinion that the crack in her countertop was caused by the cabinets not being level. (Id. at 163-164). However, Probst also testified that the person installing the new countertop had the duty to make sure the countertop was level. (Id. at 169). Since it is undisputed that Nye Construction had no part in installing the countertop, we cannot find that the trial court erred in finding that Dennis was not liable for $12,016.18, the amount it would cost to replace the cracked countertop.
{¶46} Next, Cynthia argues that she is entitled to reduce Dennis’s damages by the damages she sustained in connection to her basement flooding. All parties agree that Cory forgot to reconnect a sump pump shortly before a rain storm. What is at issue is how much damage occurred due to the flooding. Cynthia argues that she incurred $13,680 in damages, whereas Dennis argues that the damage was minimal. Cynthia offered Exhibit 201 into evidence, which detailed each item that was allegedly damaged during the flood and the price of each item. The most expensive items that were damaged were the pool table, bar, four bar stools, and poker table with four chairs. She valued that the cost to replace these items was $9,000-10,000.
{¶47} Cynthia offered many pictures of the basement into evidence and also the testimony of Mark Gordon, who was with Wayne when they discovered the flooding. Gordon testified that there was “over an inch” of water in the basement. (Feb 7, 2012 Tr. at 327). Gordon testified that he was at Cynthia and Wayne’s residence because they had bought the pool table, bar, and a game table from his employer, Scioto Valley, and they made a report that these items were
{¶48} In contrast, Dennis offered pictures of the poker table, bar, and chairs that he took the day after the flooding incident. The pictures show the chairs and table in good shape and also a layer of dust that was present on the bottom of the chairs and the table. See (Plaintiff’s Exs. RR, SS, TT, VV, XX, YY, ZZ). Cory testified that he was at Cynthia and Wayne’s house when they discovered the flooding. (Feb. 6, 2012 Tr., p. 173). According to Cory, there was “a little bit of water in the basement.” (Id.). Cory stated that there was a “half inch, maybe an inch of water” in the lowеr part of the basement, but that most “of the basement on the higher parts was all dry.” (Id. at 174). Cory testified that some ceiling tile was damaged, but not much else. (Id.). Similarly, Nick testified that the water damage was minimal. Specifically, Nick testified that the basement floors were “stamped concrete, and the water level was in the cracks * * *. It [sic] may have been a few places where it was above them, but, if any, not really. It was in the cracks. You
{¶49} Dennis also offered Exhibit CCC, which was a letter from Trudy Bushman, a claims representative from Auto-Owners Insurance, which stated that she could not see damage to the items Cynthia was claiming were damaged and advised Cynthia to contact ServePro to dry her basement in order to mitigate her damages.
{¶50} Again, there was conflicting evidence presented regarding the damage done to Cynthia’s basement and Cynthia’s failure to mitigate her damages. We cannot say that the trial court abused its discretion in denying recoupment for Cynthia in this regard.3
{¶51} Cynthia also argues that the trial court erred when it failed to award her damages for the cracked driveway. It is undisputed that a portion of Cynthia’s driveway was cracked and damaged. What was disputed was the cost to repair the driveway. Cynthia presented the testimony of Rocky Jordan, who testified that it would cost $3,150.00 to replace the entire driveway. However, Jordan did not testify what it would cost to replace only the block of driveway that was cracked.
{¶52} Cynthia argues in her brief that Dennis had the burden of providing the estimate of what it would cost to repair the affected portion of the driveway. However, she cites no case law to support this assertion. Moreover, we note that Dennis never admitted he caused the damage to Cynthia’s driveway. The fact that Dennis contested his liability makes it more unreasonable to require him to provide an estimate to repair a driveway that he maintains he did not damage. Therefore, we cannot find that the trial court abused its discretion in denying Cynthia’s request for $3,500 to replace her driveway.
{¶53} Finally, Cynthia argues that Dennis committed various accounting errors, overcharges, and upcharges on invoices. In its judgment entry, the trial court stated that it “reviewed the explanation advanced by the Plaintiff regarding these issues at Pages 17-18 of the Defendant’s Memorandum in Support filed November 21, 2012 and accepts those explanations.” (Docket No. 133, p. 11). Cynthia argues that the court could not rely on explanations in Dennis’s memorandum in support. We agree with Cynthia that a court must only rely on the evidence and testimony presented at trial when reaching its decision.
{¶54} Cynthia also makes the conclusory statement that the trial court failed to properly award her damages for “the ceiling beams [and] * * * the fireplace and gutters * * *.” (Appellant’s Br. at 17). However, Cynthia does not explain why the trial court erred, what amount she is seeking to recoup, or provide this court with any citations to the record or authorities to support her argument. Consequently, Cynthia has failed to comply with
{¶55} In conclusion, we find that Cynthia did not plead a counterclaim for negligence or breach of contraсt and insofar that she seeks damages under these unpled theories, the trial court did not err in denying her damages. Even if Cynthia was seeking to reduce Dennis’s damages under her properly pled affirmative defense of recoupment, we find that the trial court made no reversible
{¶56} Accordingly, Cynthia’s second assignment of error is overruled.
{¶57} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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