Smith v. SackSmith v. Sack
George L. Badovick, 13033 Ravenna Road, Chardon, OH 44024 (For Plaintiff-Appellee).
Katherine S. Riedel, Law Offices of Katherine S. Riedel Co., L.P.A., Jefferson Commercial Park, 1484 State Route 46 North, No. 5, Jefferson, OH 44047 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellаnt, Jared Sack, dba J.S. Hardscapes, appeals the judgment of the Lake County Court of Common Pleas awarding appellee, Robert K. Smith, a refund under the
{¶2} The statement of facts thаt follows is based on the evidence submitted on summary judgment and presented at the damages hearing following the trial court‘s entry of summary judgment on the issue of liability in favor of Mr. Smith. Between October 20, 2010 and August 16, 2013, the parties entered into a series of four contracts for appellant to construct and install
{¶3} The four contracts were evidenced by four invoices, one for each of the four stages of the project. Upon completion of each stage, appellant submitted an invoice to Mr. Smith. Appellant submitted to Mr. Smith the first three invoices on October 20, 2010; April 25, 2011; and May 26, 2011, and Mr. Smith promptly paid each in full, totaling $50,794.
{¶4} The final stage of the project was completed in August 2013. On August 16, 2013, appellant submitted the fourth and final invoice to Mr. Smith for labor and materials in the amount of $9,427. Mr. Smith paid $2,000 of this invoice on October 10, 2013, but rеfused to pay the balance due to problems with appellant‘s work. The retaining wall surrounding the patio was built in two sections, a lower retaining wall and an upper retaining wall. The upper wall was recessed by about one foot and a rock garden was installed in the recessed area between the two levels. After the patio was comрleted, part of the upper retaining wall came apart and fell to the ground. The lower and upper retaining walls and piers facing the backyard pulled away from the patio; were leaning outward; and pulled the patio floor out with them. Further, the lower wall facing the backyard, which was about 20 feet long, was bowed in the middle along the entire length of the wall. Due to the foregoing defects, Mr. Smith testified that the patio was “not useable.” Appellant‘s efforts to repair the defects were unsuccessful.
{¶5} On June 4, 2014, Mr. Smith filed this action against appellant, alleging breach of contract, a violation of the
{¶6} Appellant filed an answer and counterclaim for the remaining balance allegedly owed on the fourth contract in the amount of $7,427.
{¶7} Eight months after Mr. Smith filed the complaint, on February 10, 2015, appellant provided Mr. Smith with four notices of cancellation, one for each contract. As required by the
{¶8} Mr. Smith filed a motion for summary judgment on his complaint and on appellant‘s counterclaim. Mr. Smith argued that since he cancelled the contracts, there was no balance owed to appellant on the fourth contract, thus negating his counterclaim. Further, Mr. Smith argued that after the contracts were cancelled, appellаnt was required by the
{¶9} In appellant‘s brief in opposition, he conceded that Mr. Smith timely cancelled the contracts, but argued that the
{¶10} On June 11, 2015, the trial court granted Mr. Smith‘s motion for summary judgment on the issue of liability. The court noted the parties agree that the
{¶11} The court noted that the complaint also included a claim under the
{¶12} The court also entered summary judgment in favor of Mr. Smith on appellant‘s counterclaim, finding that because Mr. Smith properly cancelled the сontracts, there was no balance owed to appellant.
{¶13} Although the parties do not address the issue, we note the court did not expressly dispose of Mr. Smiths’ breach-of-contract claim. However, because the court found, based on the undisputed evidence, that Mr. Smith cancelled the contracts, the court implicitly dismissed that claim because with no contracts, there could be no breach. The court thus disposed of all claims and appellant‘s counterclaim.
{¶14} In addition, the court scheduled a hearing to determine the appropriate amount of damages to be awarded to Mr. Smith.
{¶15} The court held a damages hearing at which both parties presented evidence and argument. Mr. Smith argued that because the trial court found he properly cancelled all four contracts, pursuant to the
{¶16} On June 23, 2015, the trial court entered final judgment, awarding Mr. Smith a full refund of his payment of the October 20, 2010 invoice ($12,650); the May 26, 2011 invoice ($710); and the $2,000 he paid on the August 16, 2013 invoice. The court also awarded Mr. Smith a partial refund on the April 25, 2011 invoice ($22,692), but excluded the cost of the dеtached wall along the southern boundary of the property ($14,742) from the refund because Mr. Smith admitted there was no problem with that wall. The court thus awarded Mr. Smith a refund in the total amount of $38,052.
{¶17} Appellant appeals the trial court‘s judgment, asserting the following for his sole assignment of error:
{¶18} “THE TRIAL COURT‘S AWARD IN FAVOR OF APPELLEE WAS AGAINST THE MANIFEST
{¶19} As a preliminary matter, we note that appellant does not challenge the trial court‘s June 11, 2015 summary judgment on the issue of liability against him and in favor of Mr. Smith. Further, appellant concedes that the
{¶20} In opposition, Mr. Smith argues that he was not required to prove damages. Instead, he argues that, because he timely cancelled the parties’ contracts, under the
{¶21} The determination of the available remedies under Ohio‘s consumer protection statutes involves statutory construction, which is a question of law that we review de novo. Beaumont v. Kvaerner N. Am. Constr., 11th Dist. Trumbull No. 2013-T-0047, 2013-Ohio-5847, ¶8.
{¶22} “The
{¶23} This court has held that “home improvement contracts generally fall within the purview of the
{¶24} Further, the seller under a home solicitation sales contract is not permitted to begin performance of the contract until the three-day period for the buyer to cancel has expired.
{¶25} Under appellant‘s assignment of error, he raises three issues. Because the first and third issues are essentially the same, they are considered together. Appellant argues that because the trial court set the matter for a “damages hearing,” this meant that Mr. Smith was no longer entitled to any refund, but, rather, was entitled only to damages upon proof of his damages. Appellant argues the trial court erred in awarding Mr. Smith any damages because he was required, but failed, to present any evidence of damages. However, the trial court did not award Mr. Smith any damages, but, rather, awarded him a refund. In any event, appellant fails to cite any pertinent case or statutory law supporting this argument. He also ignores the relevant sections of the
{¶26} While a consumer can assert
{¶27} Because Mr. Smith canceled the contracts, he elected to proceed under the
{¶28} Contrary to appellant‘s argument, in referring to the upcoming hearing in the court‘s summary judgment as a “damages hearing,” the court did not statе or even suggest that damages were available to Mr. Smith. To the contrary, the term “damages hearing” was simply used by the court to notify the parties that the court would determine the amount of Mr. Smith‘s award at the hearing. With respect to the specific remedy the court would be considering, the trial court stated: “As Plaintiff has canceled the contracts, Plaintiff has elected to proceed under the
{¶29} The Eighth District‘s holding in White, supra, supports this court‘s holding. In White, the trial court entered summary judgment on the issue of liability
{¶30} Wе therefore hold the trial court did not err in awarding Mr. Smith a refund under the
{¶31} For appellant‘s second and final issue, he argues the trial court erred in awarding Mr. Smith damages for the patio steps. However, as noted above, the trial court did not award any damages to Mr. Smith, but, rather, did not reduce Mr. Smith‘s refund by the cost of the patio steps.
{¶32} A brief discussion of the legal prinсiples concerning a buyer‘s right to a refund under the
{¶33} Initially, we note the
{¶34} Further, if the items sold under the home solicitation sales contract were goоds, they would have to be returned to the seller. Id. at ¶32, citing
{¶35} However, this court has stated that, “where a buyer enters into a contract solely to take advantage of the seller‘s possible failure to provide notice of the right to cancel” and thus uses the
{¶36} Appellant concedes that the trial court prоperly exercised its discretion by subtracting from Mr. Smith‘s refund the amount he paid for the wall along the southern boundary of his property because, as Mr. Smith testified, he had no problem with that wall. As a result, the court found that, with respect to the detached wall, because Mr. Smith included $14,742, the cost of the wall, in his request for a refund, Mr. Smith used the
{¶38} Appellant admits in his brief that the steps were part of the patio. Mr. Smith testified that virtually every part of the patio failed, making the patio unusuble. For example, a corner section of the upper wall came apart and fell over. The upper and lower retaining walls and piers pulled away and are leaning outward with various degrees of lean. The patio pavers were pulled awаy from the house by the retaining walls, leaving large gaps between the pavers. Since the patio was useless and the steps were part of the patio, the steps were also useless.
{¶39} We therefore hold the trial court did not abuse its discretion by not reducing Mr. Smith‘s refund by the amount he paid for the patio steps.
{¶40} For the reasons stated in this opinion, the assignment of error lacks merit and is overruled. It is the order and judgment of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O‘TOOLE, J.,
concur.