[Cite as Eisert v. Kantner Constr., 2010-Ohio-4815.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
ALAN EISERT, ET AL.,
PLAINTIFFS-APPELLANTS,
v. CASE NO. 2-10-13
RICK KANTNER, dba RICK KANTNER
CONSTRUCTION, ET AL.,
DEFENDANTS-THIRD PARTY
PLAINTIFFS-APPELLEES,
v. OPINION
JACOBY L. KNERR, ET AL.,
THIRD PARTY DEFENDANTS-
APPELLEES.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2008 CV 0380
Judgment Affirmed
Date of Decision: October 4, 2010
APPEARANCES:
Thomas L. Czechowski and Joseph C. Krella for Appellants
Christopher W. Carrigg for Appellees, Rick Kantner and Rick
Kantner Construction, Inc.
Case No. 2-10-13
SHAW, J.
{¶1} Plaintiffs-appellants, Alan and Michelle Eisert (collectively
hereinafter “the Eiserts”), appeal the February 8, 2010 judgment of the Common
Pleas Court of Auglaize County, Ohio, granting summary judgment in favor of the
defendants-appellees, Rick Kantner, d/b/a Rick Kantner Construction, and Rick
Kantner Construction, Inc., collectively herinafter (“Kantner”), and dismissing
their claim for violations of the Consumer Sales Practices Act (“CSPA”).
{¶2} The facts relevant to this appeal are as follows. In March, 2004, the
Eiserts entered into a contract with Kantner for the construction of their residence.
Included in this contract was the following provision: “BUILDER
WARRANTIES HOME & INSTALLED ITEMS FOR A PERIOD OF ONE
YEAR FROM DATE OF POSSESSION.” Construction of the home began soon
after, and the Eiserts moved into their new home in April of 2005. In April of
2007, the Eiserts noticed that the master bedroom had a moldy/musty odor. The
Eiserts found that this odor was strongest along the wall near their patio door
frame. They also noticed this smell in another bedroom of their home.
{¶3} In an attempt to discover the source of the odor, the Eiserts called
Kantner, who informed them that he did not know what would be causing the
smell. After a number of phone calls, Kantner and one of his employees came to
the home in May of 2007. Kantner removed the trim from around the patio door
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and sprayed expandable foam between the door and framework to seal out the
smell. However, the odor returned after a couple of months, and the Eiserts
moved from their home in September of 2007, because they could not tolerate the
smell, which they felt was causing them headaches and making them feel ill.
{¶4} Throughout the next several months, the Eiserts and Kantner
attempted to discover what was causing the odor and had tests and inspections
performed to detect whether moisture was coming into the home and whether
mold was present. These tests revealed that there was a leak in a corner in the
basement of the home and in a corner of the master bedroom. At some point in
October of 2007, the Eiserts also hired a forensic architect, Steven Bostwick, to
assist them in determining the cause of the odor and how to remedy the problem.
Bostwick opined that there were a number of deficiencies in the construction of
the home. The majority of the problems were related to the brick veneer of the
home, the ventilation in the veneer, and the flashing. According to Bostwick,
these deficiencies allowed moisture infiltration into the basement and into
structural components of the wall, which led to the growth of mold and offensive
odors into the home. Bostwick recommended that they remove the bricks on the
home five to six courses up, remove any visible mold, and then repair/replace the
flashing and install new brick.
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{¶5} During Bostwick’s first visit to the home he spoke with Kantner
about the various problems with the home, which resulted in Kantner placing a
call to Jacoby Knerr, who operated the masonry company that installed the brick
veneer on the Eisert home. According to Mrs. Eisert, after speaking with Knerr,
Kantner informed the Eiserts that “Jacoby and I decided we would do whatever it
took to fix the problem – we would remove all brick if that’s what it took.”
{¶6} In November of 2007, Mrs. Eisert called Kantner. During this
conversation, she told him that Bostwick wanted another mold test. Mrs. Eisert
stated that she felt some hesitancy on Kantner’s part but Kantner then said, “well, I
guess we’ll go that route then.” However, when she obtained a quote from
someone to perform the test, Kantner objected to the price and told her that he
wanted “to fix the problem and be done with it” and that he did not believe “all
this testing was necessary.”
{¶7} On December 31, 2007, Bruce Stege of Advantage Environmental
Solutions, LLC, tested the home for mold and volatile organic compounds
(“VOC”). Kantner and the Eiserts were present at the Eisert home when Stege
arrived, and Kantner paid him for his services. Stege found a small amount of
mold in the master bedroom and southwest bedroom. However, Stege determined
that the levels he found did not indicate that mold was growing inside the home
but that it was possible that small amounts of mold were growing in the walls
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behind the brick because of the water influx problem at the base of the brick
exterior. Based on these results, Stege recommended that the water intrusion
problem be corrected, that any porous materials with mold on them be removed
and replaced, and that all non-porous materials be cleaned. Stege’s report also
indicated that the mold in the home would not affect the average person but that it
could affect someone in the home who was sensitive to mold. After reviewing
Stege’s report, Kantner informed Mrs. Eisert that he did not believe that he should
have to pay for an extensive clean-up because of her “sensitivity.”
{¶8} In January of 2008, Mrs. Eisert spoke with Bostwick about only
replacing the six rows of brick because she was concerned about the replacement
brick and mortar not matching the remainder of the home. At that time, Mrs.
Eisert and Bostwick discussed re-bricking the whole home. According to Mrs.
Eisert, Kantner agreed to replace the bottom six rows of brick and to repair the
flashing on the home. However, Kantner later commented that only the bricks and
flashing that were in the problem areas needed to be repaired/replaced. Mrs.
Eisert also stated that Kantner informed her on March 10, 2008, that Knerr would
repair the flashing and the brick and that whatever portion of the cost to repair the
home that Knerr did not cover, Kantner would. In addition, Kantner told the
Eiserts that he was checking with his insurance company regarding coverage he
had to repair the home.
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{¶9} Later that month, Mrs. Eisert asked Kantner if he had devised a plan
to fix her home, but he had not at that point. Kanter later informed the Eiserts that
he was only going to fix the bedroom corner and garage corner of the home, which
were the corners that they knew were leaking. Upon hearing this, Mrs. Eisert
asked Kantner to put this in writing, but he never did. Shortly thereafter, the
communication between the Eiserts and Kantner began to deteriorate, and the
parties began speaking through their attorneys.
{¶10} In order to alleviate the problems cited by Bostwick, the Eiserts
eventually had another contractor remove all of the brick veneer from their home,
put a new house wrap on the home, re-brick the entire house, and re-flash the
foundation wall at the top. Once these things were completed, the Eiserts returned
to their home in December of 2008.
{¶11} On November 3, 2008, the Eiserts filed a complaint against Kantner
in the Auglaize County Common Pleas Court. In this complaint, the Eiserts
alleged breach of contract and the implied warranty of good workmanship,
negligence, and violations of the CSPA. Kantner filed his answer on December 3,
2008. On December 17, 2008, Kantner filed a third-party complaint against
Jacoby Knerr and Knerr Masonry LTD, LLC (collectively referred to hereinafter
as “Knerr”), for contribution and/or indemnity.
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{¶12} The Eiserts filed a motion for leave to amend their complaint, which
was granted. On October 5, 2009, the Eiserts filed their amended complaint. This
complaint contained two counts against Kantner: 1) breach of contract and implied
warranty; and 2) violations of the CSPA. On October 19, 2009, Kantner filed his
answer to the amended complaint and filed an amended third-party complaint
against Knerr.
{¶13} On January 5, 2010, Kantner filed a motion for summary judgment
on the Eiserts’ amended complaint. Ten days later, the Eiserts filed their response
in opposition to Kantner’s motion for summary judgment. On February 4, 2010,
the trial court granted summary judgment in favor of Kantner on the CSPA
violation claim, finding that this claim was barred by the statute of limitations, and
dismissed the second count of the Eiserts’ complaint. Thereafter, on February 8,
2010, the trial court amended its summary judgment entry to reflect that it found
that the granting of summary judgment affected a substantial right of the Eiserts
and that there was no just cause for delay.
{¶14} This appeal followed, and the Eiserts now assert two assignments of
error
ASSIGNMENT OF ERROR I
The Trial Court Erred in Granting Partial Summary Judgment
in Favor of Kantner in Finding the Eiserts did not Demonstrate
that Kantner’s Conduct Gave Rise to a Cause of Action Under
1345.01, et seq.
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ASSIGNMENT OF ERROR II
The Trial Court Erred in Granting Partial Summary Judgment
in Favor of Kantner in Finding the Eiserts’ Consumer Sales
Practice Act Claim was Barred by the Statute of Limitations.
As these assignments of error are related, we elect to address them together.
{¶15} An appellate court reviews a grant of summary judgment de novo,
without any deference to the trial court. Conley-Slowinski v. Superior Spinning &
Stamping Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991; see, also,
Hasenfratz v. Warnement, 3rd Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain
Nat’l. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198. A
grant of summary judgment will be affirmed only when the requirements of Civ.R.
56(C) are met. This requires the moving party to establish: (1) that there are no
genuine issues of material fact, (2) that the moving party is entitled to judgment as
a matter of law, and (3) that reasonable minds can come to but one conclusion and
that conclusion is adverse to the non-moving party, said party being entitled to
have the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton
v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196, 1995-Ohio-286,
paragraph three of the syllabus.
{¶16} The party moving for summary judgment bears the initial burden of
identifying the basis for its motion in order to allow the opposing party a
“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d
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112, 526 N.E.2d 798, syllabus. The moving party also bears the burden of
demonstrating the absence of a genuine issue of material fact as to an essential
element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264,
1996-Ohio-107. Once the moving party demonstrates that he is entitled to
summary judgment, the burden shifts to the non-moving party to produce evidence
on any issue which that party bears the burden of production at trial. See Civ.R.
56(E).
{¶17} In ruling on a summary judgment motion, a court is not permitted to
weigh evidence or choose among reasonable inferences, rather, the court must
evaluate evidence, taking all permissible inferences and resolving questions of
credibility in favor of the non-moving party. Jacobs v. Racevskis (1995), 105
Ohio App.3d 1, 7, 663 N.E.2d 653. Additionally, Civ.R.56(C) mandates that
summary judgment shall be rendered if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.
{¶18} Our review of the Eiserts’ CSPA claims begins by noting that the
CSPA “is a remedial law which is designed to compensate for traditional
consumer remedies and so must be liberally construed pursuant to R.C. 1.11.”
Einhorn v. Ford Motor Co. (1990), 48 Ohio St.3d 27, 29, 548 N.E.2d 933.
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Because this Act is remedial in nature, it is “entitled to a liberal construction.”
Charlie’s Dodge, Inc. v. Celebrezze (1991), 72 Ohio App.3d 744, 747, 596 N.E.2d
486 (citations omitted).
{¶19} 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.” R.C. 1345.02(A). The statute then
provides a list of representations that are considered deceptive. See R.C.
1345.02(B). However, this list specifically states that it in no way seeks to limit
“the scope of division (A)[.]” Revised Code section 1345.03 is very similar to
R.C. 1345.02, except that it provides that suppliers are not to “commit an
unconscionable act or practice in connection with a consumer transaction.” This
section then list factors to consider in determining whether an act or practice is
unconscionable. See R.C. 1345.03(B). In addition to the statutory lists, two other
separate sources can determine what constitutes a violation of the CSPA: the Ohio
Attorney General and the judiciary. See R.C. 1345.09(B); Frey v. Vin Devers, Inc.
(1992), 80 Ohio App.3d 1, 6, 608 N.E.2d 796. However, “[a]n action under
sections 1345.01 to 1345.13 of the Revised Code may not be brought more than
two years after the occurrence of the violation which is the subject of suit[.]” R.C.
1345.10(C).
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{¶20} In a prior decision from this Court, it was noted that
[t]he identified purpose for the enactment of the CSPA “was to
give the consumer protection from a supplier’s deceptions which
he lacked under the common law requirement of proof of an
intent to deceive in order to establish fraud.” [Thomas v. Sun
Furniture and Appliance Co. (1978), 61 Ohio App.2d 78, 81, 399
N.E.2d 567.] Though the CSPA is subject to liberal construction
[Einhorn v. Ford Motor Co. (1990), 48 Ohio St.3d 27, 29, 548
N.E.2d 933] and the remedies afforded therein are in addition to
remedies otherwise available for the same conduct under state or
local law [R.C. 1345.13], courts must bear in mind the identified
purpose of the law in construing the Act. Despite its clearly pro-
consumer stance, the Act was not intended to encompass all
aspects or breaches of consumer sales agreements but was
instead directed specifically toward deficiencies in common law
consumer remedial protections, which forced consumers to
endure the consequences of deceptive trade practices without an
adequate remedy. It must necessarily follow that the Act should
generally not be extended where the claim does not involve a
deceptive trade practice and consumer interests are adequately
protected under alternative common law, administrative, and
statutory remedies.
Lump v. Best Door and Window, Inc., 3rd Dist. Nos. 8-01-09, 8-01-10, 2002-Ohio-
1389 (Walters, J., concurring).
{¶21} In the case sub judice, the Eiserts assert that Kantner violated the
CSPA in the following ways: 1) failing to honor express and implied warranties,
including Kantner’s implied warranty of good workmanship inherent in any
construction project; 2) failing to correct defective or deficient work when it was
brought to Kantner’s attention; 3) failing to honor representations made to the
Eiserts that all defects and deficiencies would be corrected at Kanter’s expense; 4)
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“stalling, delaying, and ultimately failing to undertake any action to correct defects
and deficiencies even after promising to do so;” and 5) “stalling, delaying, and
ultimately failing to undertake any action to correct defects and deficiencies even
after being presented with proper methodologies to do so.”
{¶22} In response, Kantner maintains that he was under no obligation to
the Eiserts after the expiration of the one-year warranty contained in the home
construction contract, that any violation of the CSPA occurred, at the latest, in
April of 2005, once the construction of the home was completed and the Eiserts
took possession, and that the CSPA claims of the Eiserts are time barred. The
crux of Kantner’s position is that he was under no legal obligation to the Eiserts
when he attempted to help them diagnose and correct whatever was causing the
odor in their home and that he could have ignored their requests completely.
{¶23} The Eiserts agree that Kantner “could have completely ignored the
Eiserts and never attempted to correct any of the problems with the home because
both the CSPA statute of limitations and the parties’ express warranty period had
already run.” Nevertheless, the Eiserts contend that once Kantner “chose to
affirmatively engage in discussions with the Eiserts and actively investigate the
Eiserts’ problems,” he subjected himself to CSPA liability for any
misrepresentations he made during the remediation process. In support of their
position, the Eiserts cite two cases from the Second District Court of Appeals:
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Bales v. Isaac, 2nd Dist. No. 2003-CA-99, 2004-Ohio-4677, and Keiber v. Spricer
Construction Co. (May 28, 1999), 2nd Dist. Nos. 98CA23, 98CA30, unreported,
1999 WL 335140.
{¶24} In Bales, the plaintiff-homeowners hired the defendant to purchase
and apply stucco to their home. Bales, 2004-Ohio-4677, at ¶ 4. Prior to beginning
the stucco work, the homeowners asked the defendant about a warranty on his
work to which the defendant replied “that the job was ‘guaranteed’ and that they
should contact him ‘if they ever had any problems.’” Id.
{¶25} The job was completed in June of 1994, but in June of 2001, the
homeowners discovered problems with the stucco that they claimed was due to
poor workmanship by the defendant. Id. The defendant was contacted numerous
times to have him repair the stucco and he made several promises to repair it but
never did so. Id. The homeowners hired someone else to repair the stucco and
brought suit against the defendant in December of 2001, alleging, inter alia, that
the defendant violated the CSPA. Id. The trial court dismissed the homeowners’
CSPA claim pursuant to Civ. R. 12(C) based upon the statute of limitations, but
the Court of Appeals reversed, finding that the alleged violation of the CSPA
occurred in 2001, when the defendant refused to honor his promise to respond if
the homeowners “ever had any problems.” Id. Notably, the Court of Appeals
expressly stated that it was not determining whether the defendant’s actions or
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failure to fulfill his promises constituted a violation of the CSPA, as that issue was
not before it for review.
{¶26} In Keiber, the plaintiffs entered into a contract with the defendant to
purchase a parcel of land and to build them a house on this parcel. Keiber, supra.
When the parties closed on the property in April of 1987, several items in their
contract were incomplete or not completed to the homeowners’ satisfaction. Id.
The defendant informed the homeowners that it would correct these problems, and
throughout the next few years, some items were completed and some were not. Id.
The homeowners brought suit against the defendant in August of 1989, alleging,
inter alia, violations of the CSPA. Id. The trial court overruled the defendant’s
motion for summary judgment on the CSPA claim, which was based upon the
two-year statute of limitations. Id. The Court of Appeals affirmed, finding that
the statute of limitations was not triggered until November 1, 1990, two years after
the date of the last communication of the parties due to the continued contact
between the parties and the actions of the defendant. Id.
{¶27} We find these cases to be inapposite to the current case. In each of
those cases the defendants were under a legal obligation to the homeowners to
repair the problems based upon representations they made in their contracts at the
time of the original consturctions. As correctly noted by the Eiserts, Ohio courts
have determined that “‘[a] supplier in connection with a consumer transaction who
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consistently maintains a pattern of inefficiency, incompetency, or continually
stalls and evades his legal obligations to consumers, commits an unconscionable
act and practice in violation of the Ohio Consumer Sales Practices Act[.]’” Lump,
supra, quoting Brown v. Lyons (1974), 43 Ohio Misc. 14, 332 N.E.2d 380,
paragraph two of the syllabus. However, that is not the case before this Court.
Rather, the home was completed and the Eiserts took possession of the home in
April of 2005. The warranty contained in the contract with Kantner was for one
year from the date of possession, i.e. April of 2006. Thus, in April of 2007,
Kantner was under no legal obligation to the Eiserts.
{¶28} Further, any possible CSPA violations would have occurred in 2005.
Kantner was under no legal obligation in April of 2007 to promise to repair the
home or to actually repair it as both the CSPA statute of limitations and Kantner’s
express warranty had lapsed. As acknowledged by the Eiserts, Kantner could have
refused to speak with them.
{¶29} The fact that Kantner chose to return the Eiserts’ phone calls, aided
them in determining the cause of the odor, and promised to “fix the problem” did
not amount to unfair, deceptive, or unconscionable acts. As previously noted, the
CSPA is designed to protect a consumer from a supplier’s deceptions and to
curtail unscrupulous acts of suppliers. It was not meant to punish a supplier whose
legal obligations to a consumer have ended, but yet who is willing to make a good
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faith effort to remedy a problem at the request of the consumer. Further, the
Eiserts have presented nothing to support their position that Kantner’s promises to
repair their home at his cost and his participation in determining the cause of the
problems resulted in a new legal obligation to do so.
{¶30} To allow the Eiserts CSPA claim would be to place an undue burden
on suppliers by exposing them to potential CSPA liability if they make any effort
to assist a former customer in alleviating a problem, including promising to repair
the problem at no expense to the customer, but then do not do so because of
disagreements about what is necessary to adequately repair the problem or for any
other reason. We find the trial court was correct in finding that the Eiserts could
“not avoid the statute of limitations defense by engaging in negotiation or making
demands on the implied warranty claims and then, upon a contractor failing to
agree to those demands as to the manner in which claimants wish to have their
implied warranty claims or breach of contract claims resolved, bootstrap such
negotiations” into CSPA claims and “thus obtain the benefits of the statute and its
penalties against the contractor.”
{¶31} In short, we find that any violation of the CSPA based upon an
alleged failure to honor express and implied warranties would have occurred, at
the latest, in April of 2005, when the home was completed and the Eiserts took
possession of it. Thus, the two-year statute of limitations expired in April of 2007.
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We further find that the remaining allegations regarding Kantner’s alleged failures
to repair and honor representations he made after April of 2006, did not constitute
violations of the CSPA. Accordingly, the trial court did not err in granting
summary judgment in favor of Kantner on the CSPA claim.
{¶32} For all of these reasons, both assignments of error are overruled, and
the judgment of the Common Pleas Court of Auglaize County, Ohio, is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jlr
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