Perrucci v. Whittington

[Cite as Perrucci v. Whittington, 2018-Ohio-2968.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY

MARK R. PERRUCCI :
:
Plaintiff-Appellant : Appellate Case No. 2017-CA-33
:
v. : Trial Court Case No. 2012-CVF-2427
:
CONNIE WHITTINGTON : (Civil Appeal from
: Municipal Court)
Defendant-Appellee :
:
...........

OPINION

Rendered on the 27th day of July, 2018.

...........

ROBERT KEHOE, Atty. Reg. No. 0017466, and KEVIN SHANNON, Atty. Reg. No.
0084095, and LAUREN ORRICO, Atty. Reg. No. 93303, 900 Baker Building, 1940 East
Sixth Street, Cleveland, Ohio 44114
Attorneys for Plaintiff-Appellant

JONATHAN ZWEIZIG, Atty. Reg. No. 0069381, 18 East Water Street, Troy, Ohio 45373
Attorney for Defendant-Appellee

.............

DONOVAN, J.
 -2-

{¶ 1} This matter is before the Court on the December 29, 2017 Notice of Appeal

of Mark Perrucci, appealing from the trial court’s November 22, 2016 judgment against

Perrucci on his complaint “for non-payment of construction repairs” and entering judgment

in favor of Connie S. Whittington in the amount of $15,000.00 on Whittington’s

counterclaim. The trial court also ordered that “the issue of attorney fees be referred

back to the Magistrate for further hearing,” and that “[t]his is a final and appealable entry.”

Perrucci’s notice of appeal also provides that he is appealing from the trial court’s

November 27, 2017 Judgment Entry, which awarded attorney fees to Whittington in the

amount of $15,926.74. The parties’ dispute arose from repairs Perrucci made to

Whittington’s mobile home after the home sustained water damage.

{¶ 2} Before reaching the merits of Perrucci’s assigned errors, we will address

Whittington’s assertion in her brief that Perrucci’s appeal is untimely. We note that the

record reflects that after the trial court’s initial 2016 decision, Perrucci filed a notice of

appeal on December 14, 2016, Miami App. No. 2016 CA 24. As Perrucci asserts in his

brief, “[o]n January 3, 2017, this Court issued a Show Cause Order, and on February 6,

2017 Perrucci filed a Motion to Remand for a finding that there was ‘no just cause for

delay’ in response to the Show Cause Order.” Whittington opposed the motion. On March

9, 2017, this Court found that the Show Cause Order was not satisfied and dismissed the

appeal. This Court determined as follows:

Notwithstanding [the municipal’s court’s statement that its November

22, 2016 order is final and appealable], it appeared to this court that the

November 22 entry was not final and appealable in that it indicated further

proceedings would occur on Whittington’s request for attorney fees, but did
 -3-

not state that there was no just reason for delay pursuant to Civ.R. 54(B).

Such a determination would allow an immediate appeal of the otherwise

interlocutory order. We ordered Perrucci to show cause why this appeal

should not be dismissed for lack of jurisdiction.

Perrucci responded to our order by moving to remand to the trial

court. He recognized that the trial court did not use the required language

in Civ.R. 54(B), but asked that this court remand the case to allow the court

to add such language. Whittington opposed the remand motion, arguing

that dismissal and return to the trial court is the proper manner to resolve

this appeal. Upon consideration, we agree that this matter must be

dismissed, but make no determination about what the trial court should do.

{¶ 3} In her brief, Whittington argues that the “last and final Entry in this case was

filed on November 27, 2017,” and that Perrucci did not file his Notice of Appeal until

December 29, 2017, more than 30 days after the November 27, 2017 Entry. As a result,

the instant appeal should be dismissed as being untimely filed. Perrucci responds that

the November 27, 2017 Entry was never sent to his counsel’s office, and “[m]oreover, the

clerk has never noted service on the docket, as required by Civ.R. 58(B).” Perrucci

argues that on December 29, 2017, his counsel “checked the court docket and became

aware that the Entry had been recorded,” and “promptly filed a notice of appeal.”

Perrucci asserts that “[b]ecause the Entry has never been properly served on Appellant

and service has never been docketed, the requirements of Civ.R. 58(B) have not been

satisfied. Under the rule, the time for Appellant to perfect his appeal was not even

triggered at the time the appeal was filed.”
 -4-

{¶ 4} App.R. 58(B) provides:

When the court signs a judgment, the court shall endorse thereon a

direction to the clerk to serve upon all parties not in default for failure to

appear notice of the judgment and its date of entry upon the journal. Within

three days of entering the judgment upon the journal, the clerk shall serve

the parties in a manner prescribed by Civ.R. 5(B) and note the service in

the appearance docket. Upon serving the notice and notation of the

service in the appearance docket, the service is complete. The failure of

the clerk to serve notice does not affect the validity of the judgment or the

running of the time for appeal except as provided in App.R. 4(A).

{¶ 5} “ ‘It is the service of notice, and adequate proof thereof, and not actual notice

that is required by Civ.R. 58(B).’ In re A.A., Cuyahoga App. No. 85002, 2005-Ohio-2618,

¶ 13.” In re B.M.R., 2d Dist. Miami No. 2005 CA 1, 2005 CA 18, 2005-Ohio-5911, ¶ 4.

{¶ 6} App.R. 4(A)(1) provides: “Subject to the provisions of App.R. 4(A)(3), a party

who wishes to appeal from an order that is final upon its entry shall file the notice of appeal

required by App.R. 3 within 30 days of that entry.” App.R. 4(A)(3) provides: “In a civil

case, if the clerk has not completed service of the order within the three-day period

prescribed in Civ.R. 58(B), the thirty day periods referenced in App.R. 4(A)(1) and 4(A)(2)

begin to run on the date when the clerk actually completes service.”

{¶ 7} Attached to Perrucci’s brief is the affidavit of his counsel, Robert D. Kehoe,

which provides in part that he entered a notice of appearance on September 18, 2015,

and a second notice of appearance on March 2, 2016, adding Lauren N. Orrico as

additional counsel, and that pursuant to the notices, “all service upon Appellant was to be
 -5-

sent to Kehoe’s office.” Kehoe avers that he never received the Entry of November 27,

2017, and that a “review of the case docket further reflects that the clerk has never noted

service on the docket.”

{¶ 8} We agree with Perrucci that the requirements of Civ.R. 58(B) have not been

met; there is nothing to indicate that the clerk served the parties, and service is not noted

in the appearance docket and accordingly is not complete. Thus, the time for filing a

notice of appeal has not expired, and Perrucci’s appeal is timely.

{¶ 9} We further note that in her brief Whittington asserts that Perrucci’s brief

should be rejected for failing to comply with Loc.R. 2.2 of the Second Appellate District.

That rule provides in part:

(A) No initial brief of appellant * * * shall exceed twenty-five (25)

pages in length, exclusive of the table of contents, table of cases, statutes

and other authorities cited, and appendices, if any, except by prior leave of

the Court. Application for leave to file a longer brief shall be by motion

specifying the unusual circumstances which necessitate the filing of a brief

that exceeds the limits imposed by this rule.

***

(B) Any brief that fails to comply with this rule * * * may be returned

by the Court for reformation. * * *

{¶ 10} The body of Perrucci’s brief is 32 pages. We note that on March 5, 2018,

Perrucci filed a “Motion of Appellant Mark R. Perrucci for Leave to File a Longer Brief or

in the alternative for Leave to File an Amended Brief.” Therein he argues that his failure

to comply with the local rule was an oversight. He also asserts that a longer brief is
 -6-

necessary because his appeal “stems from two separate trial entries adopting two

separate Magistrate’s decisions” and “the evidence in this case is unusually extensive as

it was admitted over four days of trial.” Perrucci asserts that allowing him to exceed the

page limit “would serve the interests of justice * * *.” We will consider Perrucci’s brief as

filed.

{¶ 11} Perrucci filed his complaint against Whittington on October 15, 2012,

claiming non-payment of construction costs; he also requested attorney fees. The

complaint alleged the following facts. Whittington’s mobile home, located at 3166 Davis

Road in Ludlow Falls, sustained damage due to a water leak inside the residence.

Whittington filed a claim with her insurance company, Foremost Insurance (“Foremost”).

After Whittington’s residence was inspected and Foremost completed an estimate of the

cost of repairs, Whittington hired Perrucci to perform the repairs. Whittington agreed to

pay Perrucci from the proceeds of her insurance claim, and on June 19, 2012, she

endorsed a Foremost check over to Perrucci in the amount of $3,756.51. A copy of the

check is attached to the complaint.

{¶ 12} Perrucci began work on the mobile home on June 20, 2012, pursuant to the

estimate. Between June 20, 2012 and August 27, 2012, according to Perrucci,

Whittington asked Perrucci to make additional repairs not attributable to the water

damage, and he did so at her request. Perrucci paid for various materials that were used

to repair the residence. On September 18, 2012, Perrucci submitted a final invoice to

Foremost in the amount of $8,681.55.

{¶ 13} The complaint states that a copy of the invoice is attached. Attached to the

complaint is an 11-page document that provides, “Mark Perrucci – Sani Home” at the top
 -7-

of each page with Perrucci’s address and phone number, as well as his “Tax id” number.

The first page of the document identifies Perrucci as the “Estimator,” and provides, “This

is the final estimate for the reconstruction at Connie Whittington mobile.” The final

estimate covers repairs to Whittington’s hallway, bathroom, laundry room, master

bedroom, office, living room, furnace room, and to the underbelly of the mobile home.

According to Perrucci, Whittington received an additional insurance payment from

Foremost and refused to pay him for the work completed. Perrucci alleged a balance

due of $4,925.04. He filed a mechanic’s lien on Whittington’s property.

{¶ 14} On December 6, 2012, Whittington filed her answer and counterclaim. In

her counterclaim, she asserted that the parties did not enter into a written contract. She

asserted that Perrucci did not perform the repairs in a workmanlike manner and acted

negligently, without the degree of care which a member of the construction trade in good

standing would exercise. Whittington asserted that she was damaged in the amount of

$15,000.00. Finally, Whittington argued that she was a “consumer,” Perrucci was a

“supplier,” and together they entered into a “consumer transaction” as those terms are

defined in the Ohio Consumer Sales Practices Act (“CSPA”). Whittington asserted that

Perrucci committed unfair, deceptive and unconscionable acts and practices in violation

of the CSPA, including “failure to perform as promised; illustrating a pattern of inefficiency

and incompetence; failure to perform in a workmanlike manner; knowing breach of

contract; failure to perform in a timely manner; failure to provide all required disclosures;

failing to provide proper receipts; and failure to incorporate all required disclosures in the

contract.” Whittington asserted that she was entitled to treble damages.

{¶ 15} On July 16, 2013, Perrucci moved for summary judgment and filed a
 -8-

“Memorandum in Support of Plaintiff’s Motion for Summary Judgment.” On July 25,

2013, the Magistrate issued a decision overruling the motion, noting that the deadline for

summary judgment motions was July 15, 2013, and Perrucci had not sought leave to file

the motion.

{¶ 16} Perrucci objected to the Magistrate’s decision on August 7, 2013. On

August 8, 2013, Whittington filed “Defendant’s Memorandum in Opposition to Plaintiff’s

Objections to Magistrate’s Decision.” On August 19, 2013, the court overruled Perrucci’s

objections, noting that his motion for summary judgment was time-stamped a day after

the deadline, and that since the matter was set for trial, Perrucci had been required to

seek leave of court to file the motion, which he did not do.

{¶ 17} The court also noted that Perrucci alleged that the “Magistrate may be

engaged in ex parte contact with counsel” for Whittington, and further noted that such “is

a serious charge and would clearly be a violation of the Rules of Professional Conduct if

true.” The court advised Perrucci’s counsel of his obligation to “notify the appropriate

authorities of these actions,” since “failure to do so could be construed to be a violation

of the Code.” Finally, the court noted that “a spurious accusation by Plaintiff’s counsel

of such impropriety of the Court would probably constitute a violation of the Rules of

Professional Conduct by Plaintiff’s counsel.”

{¶ 18} On September 20, 2013, Whittington filed a “Motion of Defendant, Connie

Whittington, to Deem Allegations of Counterclaim Admitted as True for all Trial Purposes;

Motion for Default Pursuant to Rule 55.” On the same day, counsel for Perrucci filed a

handwritten “Entry,” ostensibly allowing Perrucci to file a response to Whittington’s

counterclaim, and “Plaintiff’s Reply to Counterclaim of Defendant.”
 -9-

{¶ 19} Trial of the matter commenced on September 20, 2013. At the start of the

proceedings, the Magistrate overruled the Rule 55 Motion. The Magistrate further noted,

regarding Whittington’s motion to deem the allegations in her counterclaim admitted, that

this Court “has a strong, strong, emphasis on * * * encouraging judgment – trial on the

merits.” The Magistrate accepted Perrucci’s reply to the counterclaim. The Magistrate

also indicated that the issue of attorney fees under the CSPA would be bifurcated.

{¶ 20} The evidence presented at trial was as follows:

{¶ 21} Counsel for Perrucci called Whittington to testify as on cross-examination.

She testified that she sustained water damage after a “fitting had popped apart” in the

vanity in the bathroom. She stated that she contacted her insurance company,

Foremost, which sent Service Master to her home to remove the water; she also received

an estimate from her adjuster to repair the damage. She testified that the final estimate

attached to the complaint “could be the one that Foremost made out.” The first portion

of the estimate covered damage to the hallway of Whittington’s home, including the

installation of new carpet and padding. Whittington stated that she had to call “Brian,”

the “carpet man” to return to her home to repair the loose carpet on the day it was

installed. Regarding the “underlayment” or sub-floor beneath the carpet in the hallway,

which also had to be replaced, Whittington stated that, “when they laid the floor down, the

wooden part, it doesn’t go underneath my wall, and when you walk, it’s like a spring board

and if you get too close to the edge, and get to the wall, your shoe will actually go

underneath that.” Whittington testified that she has “issues with all of my doors,” and

that “the bathroom door will not shut because the wall is not in line. The bedroom door

is doing the same thing because it’s hooked to the same wall.” Whittington stated that she
 -10-

did not have problems with her doors prior to the repair work.

{¶ 22} The next section of the estimate covered damage to the bathroom of the

mobile home. Whittington testified that the carpet and pad were replaced in the bathroom

as well, and “the bathroom carpet is come loose.” She testified that she has “like a step-

up that you step-up to the toilet. It’s on the bottom floor right as – that the step up has

come loose.” Whittington stated that the carpet came “loose immediately.” She testified

that “Brian couldn’t fix it and [Perrucci] ended up fixing it.” Whittington testified that she

had the same problem with the wooden sub-floor in the bathroom as in the hallway. She

stated that when she “stepped from the bedroom, to the bathroom, the floor would give

away [sic]. And it also give away at the back door too.” She stated that she used to

have a vanity in the bathroom that “was one complete unit with two sinks in it,” and that

now there is “a countertop that they put on wood and then they put covers, they just put

little doors that open and close, there’s no vanity, it’s just a cover. I don’t consider that a

vanity.” Whittington stated that she “had a double sink and I wanted them. They took

them.” She stated that Perrucci “touched no part of the shower, no part of the toilet and

that all should’ve been taken out and replaced” pursuant to the estimate.

{¶ 23} The next portion of the estimate covered the laundry room in Whittington’s

residence, and when asked if Perrucci removed and replaced the paneling as listed in the

estimate, she responded that she “did not get new paneling,” and that her laundry room

was originally in the hallway and “they put it in my bathroom.” Whittington stated that her

washer and dryer were not properly reset, and “they hooked them up backwards,” so that

“now when you open the doors, they hit each other.” While the estimate covered the

installation of vinyl floor covering the in the laundry area, Whittington testified that there
 -11-

is “no vinyl,” and there was “never any of that put down.”

{¶ 24} The next section of the estimate covered the master bedroom in

Whittington’s home. While it provided for the detaching and resetting of the closet doors,

Whittington testified that “[t]hey never even took them off.” In a section of the estimate

covering the furnace room, when asked if the damaged particle board was removed and

replaced as provided, Whittington responded that “[i]t was not done.” She stated that

she signed the initial insurance check over to Perrucci because “he wanted the whole

amount to start.”

{¶ 25} Whittington testified that in the course of the project, she “never swapped

any work out.”

{¶ 26} Perrucci also presented the testimony of William Kaska. Kaska testified

that he owns “a couple Service Master clean franchises, we clean up fire and water

damage.” He stated that he has certifications in “water restoration, odor, fire, * * * mold,

* * * everything that we need for water and fire damage.” Kaska stated that he purchased

his first franchise five years ago. He stated that after graduating from college in 1989,

he “started out working for a home builder * * * and then ended up starting my own home

building company” for eight years. Kaska testified that he did new home construction as

well as remodeling, and that he has done hundreds of jobs. Kaska stated that he

subsequently “took a job with a company out of Columbus as * * * project manager for a

condominium development.” He testified that he then “transitioned from construction

into remediation, mitigation.” In sum, Kaska stated that he has been in the construction

trade for 20 - 22 years.

{¶ 27} Kaska stated that he met Whittington when “[w]e were called to her house
 -12-

after she had a water leak,” and “we * * * got the mobile home all dried out.” Kaska testified

that the mobile home was older and in “average at best” condition. He stated that he

was not involved in any construction at the property, but that he was there in late August

“hoping to maybe help both parties come to a resolution.” Kaska testified that the “house

looked like it was put back together, it had new furniture, everything looked good.” Kaska

testified that Whittington complained that the carpet installer did not use tack strips, and

“the carpet installer pulled the carpet back in multiple places. And there was tack strip

everywhere.” Kaska testified that when he observed the mobile home in August, “the

areas that were repaired were in better condition than the rest of the home.”

{¶ 28} When counsel for Perrucci asked Kaska if he considered himself to be an

expert in construction, counsel for Whittington objected, and the Magistrate sustained the

objection, noting that Perrucci did not designate Kaska as an expert prior to trial.

{¶ 29} On cross-examination, Kaska testified that he has known Perrucci since

1995 or 1996. When asked if he knew Perrucci to be a contractor by trade, Kaska

replied, “Mark [Perrucci] does several things, * * * I think his * * * bulk of his work now is

* * * information technology or something to the effect.” The following exchange occurred:

JONATHAN ZWEIZIG: You were the one who initially

recommended Mark and set Mark up with Connie, correct?

WILLIAM KASKA: I didn’t recommend him, I – I introduced the

two[.]

JONATHAN ZWEIZIG: Well then tell me who else you introduced

Connie to besides Mark?

WILLIAM KASKA: I – I didn’t introduce them. I said here’s an
 -13-

individual that I use[,] if you talk to him and you’re comfortable with him, I

think he would do a good job. * * *

JONATHAN ZWEIZIG: You don’t think that’s recommending if you

say I think he’ll do a good job, I think you should call him?

WILLIAM KASKA: No.

JONATHAN ZWEIZIG: * * * How many other names did you give to

Connie of people she should possibly contact?

WILLIAM KASKA: Just that one because she didn’t ask for any

others.

***

JONATHAN ZWEIZIG: How many contractors do you regularly

work with?

WILLIAM KASKA: Lots.

JONATHAN ZWEIZIG: Did you think Mark was capable of doing this

job?

WILLIAM KASKA: Yes.

***

WILLIAM KASKA: Did Mark tell ya I can do this type of work? If

somebody needs work, let me know?

JONATHAN ZWEIZIG: Um, he’s not actively looking for work.

Um, it was just there and he’s – you know he has the expertise to do it.

{¶ 30} Shawn Allamon testified that at the time he worked on Whittington’s home,

he had been in the construction business for 17 years. Allamon testified that he met
 -14-

Kaska at Whittington’s home at Kaska’s request. Allamon testified that when he

investigated and photographed the property, he noticed that “there was improper footing

under the trailer,” and the “foundation footers” were “tilted, sagging.” He stated that the

“trailer had been settling for many years,” and “nothing was level going underneath.”

Allamon identified several photographs of the property taken by him prior to the mitigation

and repairs and in the course thereof. Allamon identified as Exhibit 18 a photograph

taken by him of a “footer under the back of the trailer * * * directly by the bathroom door

underneath” that is at an angle. He identified Exhibit 14 as a photograph of “the cluttered

path going through the underside of the porch to the access to under the trailer.” Allamon

testified that the photograph depicts “improper insulation just laying around.” Allamon

testified that Exhibit 16 depicts “a path to * * * the other side of where the source of the

water came from the trailer, the bathroom. This picture was taken due to exposed

electric wire lines being buried underground, disconnected duct work. Cable lines being

saturated under the ground.”

{¶ 31} Allamon testified that Exhibit 10 depicts the washer and dryer in the hallway,

and he testified that they “were tilted backwards and the reason this was taken because

the * * * washer and dryer had already been propped up due to saturation prior to * * *

this water mitigation problem. So it had been addressed prior to.” Allamon testified that

Exhibit 15 depicts a dry, raised area in the bathroom “that became a storage spot for * * *

knick-knacks and odds and ends.” The photograph also depicts the sub-floor in front of

the raised area, after the carpet and pad were removed, along with fans to dry the floor.

Allamon testified that Exhibit 12 depicts a dehumidifier in front of the “the back side of the

washer and dryer wall.” Allamon testified that Exhibit 11 depicts “where the source came
 -15-

from of the busted water line” under the vanity in the bathroom. Allamon testified that

Exhibit 17 depicts a hole in the floor in front of the furnace room, next to the bathroom.

He stated that “you can see my foot where the water came out of the bathroom and * * *

traveled down a valley through the travel path of the floor, and most of the water went

down through this hole.” Allamon testified that Exhibit 13 depicts the bathroom before

any mitigation or repair.

{¶ 32} Allamon testified that he performed the mitigation at the trailer, and he “was

sub-contracted through Mark [Perrucci].” He testified that when he arrived, the water

had been shut off, and “there was no standing water, there was water saturated where

the carpet had been.” Allamon testified that he performed 75 percent of the repair work

at the mobile home. He removed the saturated carpet, pad and linoleum in the hallway

and bathroom. Allamon testified that the existing subfloor “was swollen and the areas

that had been affected by the water mitigation at that point, prior to that you could see

swelling throughout it, rolling.” Allamon testified that there “had been cupping between

the floor joists.” He stated that the subfloor was “pressboard,” and that after removing it,

he installed “3/4 inch tongue and groove * * * sheeting, OSB.” He stated that he “did it

in the bathroom and the contaminated area. * * *.” Allamon testified that he did not lift or

move the exterior wall when installing the sub-floor in the hallway because it provided

structural support for the trailer. He testified that none of the interior walls were load

bearing walls. Allamon acknowledged that there was a gap between the new subfloor and

the wall, and that “you have to build up to it to make it level.” He testified that he used a

“ledger board,” and the sub-floor “was glued and screwed to the ledger board.” He stated

that the process is “typical in a restoration job.”
 -16-

{¶ 33} Regarding the flooring in the bathroom, Allamon testified that “the first part

of getting the flooring installed correctly is, we had to remove the bath tub.” He stated

that the tub was reset after the flooring was replaced, and that the “partition wall on the

back side of the laundry room was removed.” He testified that when he completed the

job the tub was in proper working order, and that he “went over and above on that.”

Allamon stated that the raised area in the bathroom, as depicted in Exhibit 15, “was in an

unaffected area,” where the toilet was. He stated “there was a working toilet the whole

time we was there.” He stated that the photo depicts the perimeter of water damage on

the floor, that “there was no saturation up to that landing,” and that there was no mitigation

done there. Allamon testified that the shower area is also on the raised area, and he

stated that he did not remove or detach the shower because he “had no reason to.”

Allamon stated that there was a double sink, and that the vanity was “a split door with a

pull-out dated, it was * * * a base with * * * a plastic top.” In the area of the vanity, Allamon

testified that once the vanity was removed, he “undercut all of the sub-floor and put new

floor up under that partition wall.” According to Allamon, “we slid [the sub-floor] under

the wall.” Allamon testified that when he installed the new sinks, he gave Whittington the

“option of replacing the fixtures and I re-used her old fixtures.” He stated that the vanity

top did not have any water damage. He testified that he replaced four shut off valves in

the bathroom. Allamon testified that they were replaced “because they were dated and

that was the source of the problem.”

{¶ 34} Regarding the furnace room, Allamon testified that the furnace “was dis-

attached, out of the room, which exposed the floor. The floor was taken out. There was

a plenum tray in there that it mounted to that was completely rotted and rusted. Once we
 -17-

removed that, * * * all the anchoring places to put a new floor in was obsolete.” Allamon

stated that he “made all new mounting brackets, ledger boards, if you will and bracing to

properly install a new sub-floor.”

{¶ 35} Allamon testified that the job took three weeks to complete. He stated that

he spoke to Whittington and “Doug,” a “gentleman” who was often at Whittington’s home,

daily in the course of the project. He testified that he offered alternatives to them and

testified that “[s]omethings [sic] could be a supplemental bill, somethings [sic] could be

traded off for other things. So throughout this whole process, it was a day-to-day

conversation with Connie that * * * everything that I did was revised with her.” According

to Allamon, in his experience, “there’s no job that you’ll get an estimate that goes back

exactly the same as the estimate.”

{¶ 36} Allamon testified that there was a “supplemental bill to re-route the water

lines further on down more fittings” [sic] when the washer and dryer were moved. He

stated that there was “only one point in time that I remember ever hearing that there was

a problem about it and it was at the very end of the job when I came back, * * * there was

a complaint and * * * we * * * switched around and put hoses for her on there.” Allamon

testified that Exhibit 16 accurately depicts the original dryer vent hose hanging under the

mobile home, and he testified that he “reattached a brand new * * * flex duct and actually

ran it to the skirt * * * that runs around the trailer so it properly vents outside.”

{¶ 37} Allamon testified that he put R 38 insulation under the mobile home, along

with a moisture barrier. When counsel for Perrucci asked Allamon if he repaired and

installed the materials in a reasonable and ordinary fashion customary to his experience

in the industry, counsel for Whittington objected, and the Magistrate indicated that
 -18-

Allamon “will not be considered an expert since he had not been disclosed.” When

asked if he did good work on the property, Allamon responded, “from day one the job was

a task due to being an older home, every single thing in this property, I had to modify

mounting positions, I had to use extra bracing, extra brackets, * * * glue, screws, longer

screws, * * * so I feel that I went over and above just a normal standard procedure of

replacing as of that quality for restoration purposes.”

{¶ 38} The following exchange occurred:

CHRISTOPHER PERRUCCI: * * * Based upon the work that you

installed and done, and had done there, is there any reason why you would

believe that that work needs to be redone?

***

MAGISTRATE: Hold on a second sir.

JONATHAN ZWEIZIG: Just again for the record what they’re

utilizing is my expert’s reports to the extent, again, they’re trying to utilize a

lay witness testimony to contradict what my expert’s gonna come in here

and say. I just want the Court to be mindful that again this individual has

not been classified or qualified as an expert witness. So if that’s the path

we’re going down, I at least want to make an objection.

MAGISTRATE: * * * This is the report done by an expert of yours?

JONATHAN ZWEIZIG: Correct Your Honor.

***

MAGISTRATE: I don’t know that, Mr. Perrucci, I don’t know that I,

if you’re going to cross examine him as a lay person with an expert, I think
 -19-

you’re kind of going into a darker area that probably if Mr. Zweizig objects,

I would be inclined to sustain. If he wants to say, we’ll [sic] I’ve done this,

or done that, I guess he could do that. But if he’s going to comment about

what the expert specific findings were in an attempt to contradict them in

terms of kind of as an expert that I cannot allow.

CHRISTOPHER PERRUCCI: * * * I was simply trying to, since he is

the contractor that installed and did the work, that I thought he would be in

a position to identify the items on there that he did , that he believed needed

to be repaired. I mean, he has first-hand knowledge. * * *

JONATHAN ZWEIZIG: And Your Honor if he had been identified as

an expert, I sure would have taken his deposition.

MAGISTRATE: * * * [I]f it’s an objection I would probably sustain it

again because what you’re doing now, is you’re going into him effectively

commenting as an expert about another expert’s report. * * * I don’t believe

that I could really permit that.

{¶ 39} On cross-examination, Allamon testified that he did not have the final

estimate “in my possession and I got what to do from [Perrucci].” Allamon testified that

he did not obtain any written “change orders” for the project from Whittington. He stated

that he worked alone on the job most of the time.

{¶ 40} Michael Laughlin testified that he is employed at Foremost and was

Whittington’s assigned adjuster. He testified that he “put together my initial estimate for

* * * what it would take to rebuild and replace what was water damaged.” Laughlin

identified the final estimate as an estimate prepared by Perrucci. Laughlin testified that
 -20-

he did not see Perrucci’s estimate until the work was complete. Laughlin identified a copy

of the initial check made out to Whittington on the project. He testified that he returned

to the property after Perrucci indicated that the project was complete, at the end of August

2012. At the time, Whittington indicated to Laughlin that she was not happy with the

work performed. Laughlin testified that he thought the quality of the work was poor. He

stated that there were several places along the wall where the floor was “very soft where

you could stick your hands down * * * at the base of the wall into the floor a little bit.”

Laughlin stated it was “almost like it had been before the loss where the particle board

was just soft and deteriorated.” Laughlin testified that the bathroom countertop was new

and “it was crooked.” Laughlin stated that the countertop “pushed out the hallway wall

which made the door crooked.” He testified that after the project was completed, the tub

was not level but rather “tilted down towards the outside of the home.” He stated that

there was an area “between the bath and the shower where you could stick your hand

through the floor by the step.”

{¶ 41} Laughlin testified that the flooring in the furnace closet was saturated with

water, and after it was replaced, “the sub floor didn’t seem to be holding completely level

and sturdy but then there was also a hole in the wall.” Laughlin testified that he felt as

though he could possibly fall through the floor.

{¶ 42} On cross-examination, Laughlin testified that he issued a final check to

Whittington to close the claim in the amount of “roughly $3,800.00.”

{¶ 43} Mark Perrucci testified that he worked full time in construction for about six

years, after working as a paralegal and owning a medical billing company. He stated

that he also worked for the Redding Construction Group over the summers while in
 -21-

college and for a little bit after college. Perrucci testified that he currently owns a

business called Sani Home, and that he “sell[s] sanitizing products to the schools, nursing

homes, individuals.” In addition, Perrucci testified that he is employed as a subcontractor

for “a company called SLI On-line,” and that he does “a lot of criminal research/civil

research for them.” Perrucci stated that he occasionally does a construction job.

{¶ 44} Perrucci testified that he had no construction jobs in 2013, he had one

construction job in 2012, namely Whittington’s mobile home project, and one construction

job in 2011. Perrucci stated that his area of skill is “general framing and interior trim” and

finish carpentry.

{¶ 45} Perrucci testified that when he went to Whittington’s home for the first time,

he asked her if she had a construction estimate, and she provided one for him. He stated

that he advised her that he “wasn’t a full-time construction carpenter. Didn’t have a

company.” He stated that he told her that he “[d]idn’t have any worker’s comp. Didn’t

have any liability insurance. And * * * I wasn’t bonded, but I could do the work.” Perrucci

testified that when he and Whittington walked through the mobile home, she asked him if

he could move the washer and dryer into the bathroom. Perrucci testified that the basis

of the work he performed at the home was the “insurance estimate.” He stated that

Whittington provided him with a Foremost check at their initial meeting that was payable

to her. He stated that there was no written contract between him and Whittington.

{¶ 46} Perrucci testified that Allamon did the majority of the work at the project,

and that he stopped by every couple of days to check on Allamon’s progress. According

to Perrucci, “we every step of the way, we made sure that Connie was happy with the

work that was being completed.” He testified that in addition to Allamon, “Brian” installed
 -22-

the carpet, and Rob Yorky “did the HVAC.” Perrucci testified that Whittington’s boyfriend

was present every day in the home.

{¶ 47} Perrucci testified that the original sub-floor in the mobile home was particle

board, and that it was replaced with three-quarter inch tongue and groove plywood.

According to Perrucci “[y]ou remove the sub-floor from the top of the floor joists, you take

it out wherever it’s under the walls, you have to remove under the walls, if there’s nails,

you have to pull the nails out and then you start installing the sub-floor.” Perrucci stated

that it is a common practice to cut along the walls when removing sub-floor.

{¶ 48} Perrucci testified that the initial estimate provided to him did not include

work in the living room, the master bedroom, or the office, but only the hallway, bathroom,

furnace room and laundry room. He testified that he replaced the sub-floor in the areas

where damage was indicated in the initial estimate. He testified that his installation of

the sub-floor was reasonable and typical of other installations.

{¶ 49} Perrucci testified that the walls to the laundry room were interior walls within

the bathroom, and there was an opening into the hallway. He testified that the laundry

room walls were removed, and the washer and dryer are now inside the bathroom.

{¶ 50} When asked about the interior wall of the trailer that runs along the hallway,

Perrucci stated that the wall was not lifted and that he installed subfloor a “little bit

underneath the wall.” He testified that the sub-floor was removed by cutting along the

wall joint by means of a saw, and that Allamon then built a ledger board to “carry the load

of plywood that didn’t attach to the other floor joists and it made another floor.” He

testified that the ledger board served the purpose of a floor joist. He testified that in the

furnace room, which is framed by three walls, there “was no way to get [the subfloor]
 -23-

under the furnace room,” so the original particle board was removed, and a ledger board

was created, and the new plywood was placed on top and secured to the ledger board.”

{¶ 51} Perrucci testified that the bathroom tub was removed and sub-floor was

replaced to the wall area, and then the tub was reinstalled. He testified that the shower

and the toilet were on the “step-up” area in the bathroom. When asked if the step-up

area was damaged by water, Perrucci replied, “not that I could tell.” Perrucci testified

that new paneling was installed in the bathroom, and that it was “[t]op of the line, oak.”

He testified that “Doug” selected the paneling and Allamon installed it. Perrucci testified

that the original vanity was not four-sided but that the interior of the vanity was composed

of the bathroom walls. He stated that it was supported by a “ledger system.” Perrucci

stated that he “bought two cabinets and tore them apart, and put the face together” to

replace the original vanity and put in a new ledger system. Perrucci stated that the final

estimate did not call for a new vanity top, but he “asked Connie if she would like a new

vanity top and she said yes.”

{¶ 52} Perrucci identified the final estimate as “the estimate that was provided to

me by Connie.” The following exchange occurred:

CHRISTOPHER PERRUCCI: Okay and we’ve been using that

throughout the proceedings * * * both in your deposition and we attached it

to the complaint as the document that describes and defines the work that

was done. Does that sound right?

MARK PERRUCCI: Yes. Yes.

{¶ 53} Perrucci testified that a new piece of flooring was placed under the tub,

and that he supported the seam between the new plywood and the middle of the door
 -24-

jamb by going under the trailer and building a “support system that would help that seam

stay in place.” According to Perrucci, since he “did not remove the toilet, and I did not

remove the shower because I saw no water damage, we swapped out those two pieces

for the labor and the time and material to put the laundry in the bathroom.” He stated

that Whittington “was happy that we were there, she was happy with the quality of the

work.”

{¶ 54} At his final meeting with Whittington, however, Perrucci testified that she

“seemed to be generally unhappy.” Perrucci identified as Plaintiff’s Exhibit 60 in part as

a Chase receipt dated August 27, 2012, reflecting a withdrawal from his checking account

in the amount of $360.00, with handwriting that provides “$240.00 to Doug Whittington

job.” Also on Exhibit 60 appears the following handwritten list, according to Perrucci’s

testimony: “Adjust the main door in the bath. Adjust the master bedroom latch.

Lowered the receptacle, creak in the floor, tack strips were okay, side splashes she did

not want. And a longer [washer hose drain].” Perrucci stated that the list reflects “items

that she was unhappy with during that last meeting.” He stated that “Doug was hired to

finish that work.” Perrucci stated that he hired Doug and paid him $240.00. Also

reflected on the list is “squeak in floor,” and Perrucci testified that he “did go under and

fix the creak in the floor, it’s just * * * when I put the 2x4s underneath there, and I put the

structure in, I put a 2 x 4 and brought that down to the ground for more support” in the

area of the step-up in the bathroom. Attached to Exhibit 60 are several receipts from

Lowes and Menards, and Perrucci testified that they reflect materials he purchased for

the Whittington project.

{¶ 55} Perrucci stated that the mobile home was in poor condition when he initially
 -25-

arrived there. He stated that after he completed the project, the area that he was

responsible for was in good condition. He stated that he was not hired by Whittington to

remodel her mobile home but to perform remedial work relative to her insurance claim for

water damage.

{¶ 56} On cross-examination, Perrucci testified that when he reviewed his

deposition, he noticed errors in his testimony, but that he did not make any effort to notify

the court reporter. The following exchange occurred:

JONATHAN ZWEIZIG: * * * Do you remember my taking your

deposition and asking you about how many jobs you’ve done in the past

three years?

MARK PERRUCCI: Yep.

JONATHAN ZWEIZIG: What was your response?

MARK PERRUCCI: I believe I said 30 or 40.

JONATHAN ZWEIZIG: * * * So today, you’ve two jobs in the last three

years. In June when I took your deposition, it was 30.

MARK PERRUCCI: Correct.

JONATHAN ZWEIZIG: * * * In June when I took your deposition,

you testified you’d averaged one construction job per month for the past

three years.

MARK PERRUCCI: I don’t recall that.

***

JONATHAN ZWEIZIG: I asked you on Page 8, “are you regularly

engaged in the business of doing construction work?” Page 9, your answer
 -26-

“regularly” with a question mark. Question, “I mean you don’t do this once

a year?” Your answer, “no.”

JONATHAN ZWEIZIG: You’ve testified now three times that you’ve

done it, either zero times a year or once a year since you’ve been on the

stand, correct?

MARK PERRUCCI: Correct.

JONATHN ZWEIZIG: But at your deposition, you’ve told me you’ve

never done just once a year.

MARK PERRUCCI: Made a mistake.

***

JONATHAN ZWEIZIG: And you have a bank account established

for your construction accounts, correct?

MARK PERRUCCI: No.

***

JONATHAN ZWEIZIG: * * * Page 17, I’m asking about your

corporation -.

MARK PERRUCCI: About Sani Home.

JONATHAN ZWEIZIG: I’ll ask the question.

MARK PERRUCCI: Okay, sorry.

JONATHAN ZWEIZIG: Did it do the work on the home, or did you

do the work on the home? Your answer, “I did the work on the home.”

“Sani Home’s is a company that I run, that had a bank account established.”

Question, “just for this project, or for your construction projects?” Answer,
 -27-

“no it was for construction projects.” Correct?

MARK PERRUCCI: Correct.

JONATHAN ZWEIZIG: You’re a contractor by trade, correct?

MARK PERRUCCI: No.

JONATHANN ZWEIZIG: This is what you do correct?

MARK PERRUCCI: No.

JONATHAN ZWEIZIG: Sir are you trying to tell this court that this is

not what you do just so you can avoid the Consumer Sales Practices Act?

Is that what this is?

MARK PERRUCCI: No. I’m not a contractor. I’m no longer a full-

time contractor.

JONATHAN ZWEIZIG: But sir I’m not asking you what you are

today, I’m asking when you did the work, you were a full-time contractor,

correct?

MARK PERRUCCI: No.

JONATHAN ZWEIZIG: You did a job one on one on these projects?

MARK PERRUCCI: I was mistaken.

JONATHAN ZWEIZIGG: And you testified today as if you’ve been

there a lot and you’ve done a lot of the work, correct? You’ve used “we”

all the time in your prior testimony correct?

MARK PERRUCCI: Today’s testimony?

JONATHAN ZWEIZIG: Correct.

JONATHAN ZWEIZIG: Yeah, I guess, we.
 -28-

JONATHAN ZWEIZIG: Do you remember testifying in your

deposition that Shawn did 80 percent of the work?

MARK PERRUCCI: Sure.

JONATHAN ZWEIZIG: Do you remember testifying in your

deposition that Rob did 10 percent of the work?

MARK PERRUCCI: Yeah.

JONATHAN ZWEIZIG: And that the carpet guy, did ten percent of

the work?

MARK PERRUCCI: Yep.

JONATHAN ZWEIZIG: That’s 100 percent of the work, correct?

MARK PERRUCCI: Correct.

{¶ 57} Perrucci testified that he received $3,756.51 for the project, and that he was

seeking, in addition to attorney fees, the difference between what he was paid and the

contract price of $8,681.55. Perrucci testified that in September 2012, he signed an

affidavit for a mechanic’s lien under oath, and that the number reflected on his affidavit is

not correct. He testified that there is not a signed contract or a signed change order from

the Whittington project.

{¶ 58} Perrucci acknowledged that the final estimate provided for blown-in

insulation under the mobile home, but that he did not blow in any insulation. Perrucci

testified that he did not provide Whittington with a list of the sub-contractors he intended

to use on the project or with the warranties on the insulation. He stated that he did not

provide in writing to Whittington whether he was insured under worker’s compensation or

whether he met applicable licensing and bonding requirements. He stated that he did
 -29-

not provide a written estimated completion date. He stated that he did not provide in

writing the type and brand of insulation he intended to use. He stated that he did not

provide Whittington with a statement of her legal rights. He stated that, after the

insulation was installed, he did not provide Whittington with a “consumer information

card.” Perrucci testified that he installed the vapor barrier and the insulation himself, that

he told Whittington that he was not going to use “blow-in” insulation, and she “was fine

with it.”

{¶ 59} Perrucci testified that he does not know what a “shear wall” is, or if the

mobile home had any “shear walls.” Perrucci testified that he advised Whittington that

he did not have any employees, but that he had a list of sub-contractors that he used

regularly. Perrucci testified that he pushed the sub-floor under the interior walls of the

home with “your feet and a sledge hammer.” He stated that to remove the original sub-

floor, “[y]ou chisel it out with a chisel and a hammer.” When asked about nails under the

wall, he testified that “you clip the nails off with a pair of dykes.” According to Perrucci,

“[o]nce the surface is clean, it allows you to put a new surface in there.” Perrucci

acknowledged that the final estimate called for lifting the walls, and that he did not do that.

He stated that he did not advise Whittington that he did not intend to lift the walls as

provided in the final estimate. Perrucci denied moving the laundry room wall because it

was easier to install the sub-flooring there without having to chisel it out from that wall.

He stated that he does not know who the manufacturer of the mobile home was. Further

cross-examination of Perrucci was then suspended to allow for the testimony of James

Hellman, Whittington’s expert witness.

{¶ 60} James Hellman stated that his grandparents owned 18 apartment buildings,
 -30-

which his grandfather maintained, and that he began helping his grandfather as a boy.

Hellman testified that when his grandfather died, he maintained the buildings. He stated

that by “the time I was 14, I dug, framed and poured my first porch for some people down

the street. By the time I was 16, I built my first garage.” Hellman stated that he built his

first house in 1990. He stated that in 2000 he started his own company, and that he

“can plumb, I can do electric, my expertise is great in carpentry work, that’s what I do the

best. But I have a general knowledge of all because like I said I built houses and

everything else, so.” Hellman stated that he has owned Dunn Well Construction since

2000. He indicated that he has testified as an expert in the municipal court over a

contractor dispute. Hellman indicated that when he was retained to investigate

Whittington’s mobile home, he did some preliminary investigation as to mobile home

construction and renovation, and he stated that the Ohio Manufactured Homes

Commission in Columbus “set the guidelines of structure on mobile homes along with

housing and urban development. And they have strict guidelines to follow.” He stated

that he prepared a report in the course of his investigation.

{¶ 61} Counsel for Perrucci objected, asserting that Hellman “has no first-hand

knowledge about what’s quoted as the work that Mark Perrucci did. His review of the

work was in February. Mark’s crew was out of there in August.” The court overruled

the objection. Counsel for Whittington then asked the court to recognize Hellman as an

expert witness, noting, “[m]y understanding in Chambers that opposing counsel wants to

take some time to examine.”

{¶ 62} Counsel for Perrucci then examined Hellman as on cross-examination on

the issue of whether or not he was qualified to testify as an expert. Hellman indicated that
 -31-

he did not attend college or take any classes in structural engineering. He stated that he

has a State of Ohio general contractor’s license, registered in Montgomery County.

Hellman stated that he has built four custom homes. Hellman stated that he is not a

licensed plumber or electrician, “but the issues here aren’t electrical or plumbing, it’s all

carpentry.” When asked about his formal education in carpentry, Hellman replied, “I did

all of the classes in high school and like I said, I’ve been doing this since I was little boy,

I think that pretty well qualifies it.” He stated that he has 40 years of experience as a

carpenter.

{¶ 63} The following exchange occurred:

CHRISTOPHER PERRUCCI: * * * And * * * you’ve recited some

statements about HUD and also about * * * the manufacturer of housing

commission here in Ohio. Do you know what those things apply to?

JAMES HELLMAN: They apply to manufactured homes, such as

pre-fab or mobiles and there’s specific guidelines spelled out from both of

them of how they’re supposed to be.

CHRISTOPHER PERRUCCI: And do you know when the HUD

guidelines came into existence?

JAMES HELLMAN: That I can’t tell you, but I have a copy of those.

CHRISTRPHER PERRUCCI: If I told you that it applied to mobile

homes manufactured after 1974, would you have any reason to think that’s

inaccurate?

JAMES HELLMAN: Wouldn’t matter, this home was manufactured

in ’89.
 -32-

CHRISTOPHER PERRUCCI: And how do you know that?

JAMES HELLMAN: Well I’m going by the owner’s recollection of

how old the house is.

CHRISTOPHER PERRUCCI: Okay, but do you have any personal

knowledge of when the mobile homes [sic] was manufactured?

JAMES HELLMAN: I do not.

{¶ 64} Counsel for Whittington resumed his direct examination after the trial court

declared Hellman an expert. Hellman testified that he visited Whittington’s home on

February 11, 2013. He stated that he then reviewed the final estimate, to review what

was quoted compared to “what actually happened.” Hellman identified his report of

March 21, 2013. The report initially provides as follows:

* * * The complaint was about the work done on the home by a Mark

Perrucci – Sani Home, due to water damage caused by a shut off valves

[sic] coming off a water line in the bath room. Using their write-up I will

address my findings.

Page 1: Main Level Hallway

They were to lift the wall and replace the damaged particle board. This did

not happen. Instead they cut along the walls and replaced accessible

particle board. Also on this page they mentioned the missing wall for the

laundry room they installed wall in a different location than was originally.

This is unacceptable because in a mobile home or a pre-fabricated structure

they are engineered to be in a specific location for strength and stability and

moving this is structurally unsound. Sani Home claims they move to meet
 -33-

code, there is no code that will change a structural design on a mobile or

pre-fab home.

{¶ 65} Hellman testified that he “contacted the manufacturer and * * * they assured

me you cannot push on the ceiling of these things” to lift the interior walls. He stated that

if you replace subfloor under a shear wall, “you have to block the ceiling, you can‘t put

pressure on it, take that wall down and they fix the floors and then replace that shear wall.

What I saw in here, it was cut along those walls, and the boards were pulled out and

replaced up to the wall. There was no sign of putting wood underneath * * * these walls.”

When asked if he observed evidence that damaged sub-floor had been chiseled out from

under the walls, Hellman responded, “you can’t chisel that wood out from under there for

two reasons. It’s glued and screwed down.”

{¶ 66} Regarding the wall that was moved for the laundry room, the following

exchange occurred:

JAMES HELLMAN: Mentioned wall for laundry room, they installed

wall in a different place. Now if they did not contact the manufacturer of

this home, the wall that they moved, may or may not be a shear wall and

unless they know where that shear wall is and what the shear wall is, it can’t

be moved. And that’s for structural reasons. * * *

MAGISTRATE: Let me ask you a real quick question. * * * Is this

a shear wall, or do you not know?

JAMES HELLMAN: Do not know, I never questioned the

manufacturer to it being a shear wall or not. That changes per model per

trailer manufacturer.
 -34-

MAGISTRATE: So in other words, it may be okay, it may not be

okay if its –

JAMES HELLMAN: Correct but the comment was made to me that

this wall was moved due to a code. There is no code anywhere in this state

that says an existing wall has to be moved. Now if it was an addition to this

property, then yes it has to be brought up to standard code. But if it’s an

existing wall, it is not to be moved by code.

***

{¶ 67} The next paragraph of Hellman’s report provides as follows:

Page 2: Bathroom

Sani Home was to remove the tub & shower to remove the damaged floor

and replace with new. They did not remove the shower and as far as the

tub goes, they may have removed but they left a big hole in the floor * * *.

I don’t know of any house that you can see the ground underneath through

the floor. Also they took her vanity top and replaced it with one that is too

small so they tried to cover this up by using a ton of caulk and poor trim

work. I could go on about the finish work in the bath, but it would be more

of the same – poor in every respect.

{¶ 68} Another section of Hellman’s report provides as follows:

Page 6: Living Room & Furnace Room

All were supposed to have the floor removed, lifted and replaced in all of

these locations. The floor was cut along the walls and replaced where

accessible. Also the duct work for the furnace is very poor and the furnace
 -35-

floor is already sinking * * *.

{¶ 69} Hellman testified, “I don’t understand why they cut into the duct work for the

furnace because if it would’ve went back right where it was it should’ve been no different

than what it was. And these things are designed to be a specific way. And they don’t

need to be changed.” Hellman testified that “materials haven’t changed since this thing

was built that you can’t get the same * * *.”

{¶ 70} Hellman testified that when he walked through the mobile home, the floor

“was springy * * *.” He stated that “in replacing the sub-floor, * * * they cut down along

the walls so it was pieces. Everything was pieced together.” According to Hellman,

“you can feel [the floor] give.” When asked if he would have expected the floor to be

“springy” if the entire subfloor was replaced, he replied, “[a]bsolutely not because

subfloors and especially in trailers - * * * every sub-floor is glued and screwed down.”

{¶ 71} The final section of Hellman’s report provides as follows:

Page 7: Underbelly

Sani Home was supposed to insulate and install a vapor barrier.

This was done in as poor a manner as possible. There are a lot of areas

that are not even insulate[d] or covered with the proper vapor barrier but

most of all the bottom should have been covered with Celatex. Celatex is

used on the bottoms of mobile homes to keep out bugs, mice and other

small critters. * * *

{¶ 72} Hellman testified, “I’m going strictly off of what their quote said they would

do, and when I got there, it was not done. I mean, according to their quote, they were

going to insulate it, fix the vapor barrier, and take it back to where it was. And that was
 -36-

not the case.” Hellman testified that the vapor barrier and insulation were “hanging

down.” Hellman testified that a vapor barrier cannot be installed from inside the mobile

home.

{¶ 73} In summation, Hellman testified that “when you tell somebody you’re going

to lift the walls and replace the floor and you can’t lift the wall then you’re not doing what

you said you would do. If you say you’re going to get under this thing and you’re gonna

put all of this under it, but you didn’t get under it, you didn’t do it.”

{¶ 74} Hellman identified an estimate he prepared as part of his report to repair the

mobile home, for a total cost of $11,029.61. The estimate provides:

Dunn Well Construction will remove: all carpet and pad; wall

paneling, baseboards; door casings; furnace; shower; tub; vanity; wall built

by Sani Home; and all sub-floor. * * * Dunn Well will make every effort to

remove these items without damage and save them for re-installation, but

that may not be possible based on how they were installed. Dunn Well will:

replace all sub floor in the proper manner; rebuild wall back to its original

location; re-install furnace, shower, tub & vanity; re-connect all electrics,

water and furnace runs.

Dunn Well will lay new underlayment for vinyl in laundry room then

install new vinyl. Dunn Well will hang new paneling, reinstall carpet pad &

carpet, hang doors, install all baseboards and door casings. Dunn Well will

then go under the home insulate properly then cover bottom with Celatex to

prevent any small animals from entering the home from underneath.

{¶ 75} When asked if the charges reflected on his estimate are “all reasonable
 -37-

and necessary,” Hellman responded, “Well I would say after doing more investigating on

this matter, it’s probably on the low side, but with * * * current pricing going now with

lumber and everything else, I would say it’s pretty close.”

{¶ 76} On cross-examination, Hellman testified that the walls in the mobile home

were screwed and glued in, so that even if you remove the sub-floor, you cannot slide

new sub-floor in place under the wall due to the presence of the screws. He stated that

the mobile home was manufactured in 1989, and at that time the screws were required

by the “structural design code published in 1976.” Hellman stated that there appeared

to be a gap of a quarter inch on each side of the new vanity. He stated that the hole

under the tub is visible when the access panel to the tub plumbing is removed.

{¶ 77} Testimony resumed on December 17, 2013. Whittington was called on

direct examination. Whittington stated that she and her husband initially moved into a

1970 mobile home on the property, and that they purchased the current mobile home in

1990. She stated that she signed the initial insurance check over to Perrucci pursuant

to the final estimate, and that the final estimate reflected “what it was going to cost to

have the whole place done,” namely $8,681.55. Whittington stated that she received a

second check from Foremost, and that she signed it over to her attorney and did not use

it to purchase anything.

{¶ 78} When asked about Perrucci’s workmanship, she testified that if you walk on

the floors, “they bounce.” According to Whittington, “You go along the edge and your

foot will actually go into the side of your sole of your shoe will hook in between the

baseboard because they do not connect to the walls.” She testified that her “doors won’t

shut. The walls are out of line.” She stated that the “the door that goes to the bathroom
 -38-

does not close because the door is not in line.” She further testified that a “problem I’m

having with the carpet isn’t the carpet man, it’s because the carpet has nothing to hook

to, there’s too much gap so I just go along and take a putty knife and tuck it all back in all

the time * * *.”

{¶ 79} Whittington stated that there is a three-foot long and one-and-a-half inches-

wide hole under the bath tub behind the access panel, and that Perrucci “did not finish

the flooring.” Regarding the shower floor, Whittington testified that “the floor was not

replaced and that was right there at the main break where the water line broke.” She

stated that “it’s eventually going to fall through because it’s – you can feel it when you

walk in it.” Whittington stated that she “asked them about it and they said it didn’t need

to be taken out and this is the way that it is.”

{¶ 80} On cross-examination, counsel for Perrucci referred to the final estimate as

“the estimate from the insurance company.” Whittington acknowledged that the final

estimate does not list work for the master bedroom door, and she testified that “it wouldn’t

be because the wall was still here then, you guys took the wall out and when you put the

wall back in that’s what set the door off.”

{¶ 81} Whittington stated that in August, 2012 she asked Perrucci to discontinue

the project and not return to her property. She stated that “they asked me what it would

take, for me to be happy. I said * * * to take my floors, do them right, so when I walk on

them, they don’t bounce, get my walls back in line, they said they couldn’t do that. So I

asked them to leave.” When asked if Perrucci hired Doug to finish the project, she

replied that “that has nothing to do with me” and that she did not hire Doug. She testified

that Perrucci handed her $240.00 and “told me to keep it, to take and have it for Doug to
 -39-

turn that around.” She stated that she gave the money to Perrucci, and “he threw the

money on the table, and before I got it all collected, he was gone.”

{¶ 82} Whittington stated that her washer and dryer are boxed in and an electrician

and a carpenter are required to remove the wall to get them out of the bathroom. She

stated that she did not want them in her bathroom, and that Allamon “brought me in the

house, told me that the bathroom could not go back the way it was, because of code.”

Whittington testified that the floor under the doorway of the master bedroom into the

bathroom “fell through” under the carpet, that she fell in that area, and that Doug “patched

it.”

{¶ 83} Whittington stated that she has not paid for any repairs since Perrucci left

her home. She stated that she gave Perrucci “many opportunities to come out there to

* * * fix what was wrong, but it was always this is the way that it is. * * * He did go

underneath and he did make that where the bathroom with the step-up to the toilet is, he

did go underneath there and put a board and two things down to the ground, but – he

calls that fixed.”

{¶ 84} Whittington testified as follows about her new vanity:

It’s worse. It’s got the wall bowed out because it’s pushed that

outside wall out. The vanity, the sinks don’t match, I had almond sinks, I

get white sinks back, everything in the bathroom is almond. * * * I had * * *

two doors and I had in the center between the two doors, was a clothes

hamper that flipped out. All I have now is two big face doors. Nothing, no

handles on them no nothing, they just open up to nothing. Just two huge

doors. No, matter of fact I asked Mark to bring my sinks and stuff back. *
 -40-

* * He said it was too late. Why they had to be replaced, I don’t know,

they’re made of the same stuff out of the bath, they weren’t damaged.

{¶ 85} At the end of the hearing, the Magistrate asked the parties to submit

proposed findings of fact and conclusions of law. On January 31, 2014, Perrucci filed

“Plaintiff’s Trial Brief,” and Whittington filed “Defendant, Connie Whittington’s Proposed

Findings of Fact and Conclusions of Law” on the same day. On February 3, 2014,

“Plaintiff’s Motion to Set Aside Defendant’s Proposed Findings of Fact, Conclusions of

Law, Judgment and Order for Further Hearing” was filed. On February 11, 2014,

Whittington opposed Perrucci’s motion to set aside her proposed findings of fact and

conclusions of law.

{¶ 86} On September 9, 2015, the Magistrate issued a Decision. The Magistrate

initially noted that, at the conclusion of the evidence, he had requested that the parties

submit proposed findings of fact and conclusions of law, that Whittington had complied

with the request, and that Perrucci had provided a trial brief. The Magistrate overruled

Perrucci’s motion to set aside Whittington’s proposed findings of fact and conclusions of

law.

{¶ 87} The Magistrate found that Whittington’s mobile home is her primary

residence, that she contracted with Perrucci to perform restoration work “as a result of a

flood that occurred at the mobile home,” and that the scope of the work was set forth in

a document prepared by Foremost. According to the Magistrate, there was no signed

agreement between the parties for the work to be performed, and Whittington signed over

the first check she received from Foremost to Perrucci. The Magistrate found that

Whittington did not receive a receipt for the payment. The Magistrate found that Perrucci
 -41-

served as a general contractor on the project and employed various subcontractors, and

that in August 2012, Whittington expressed displeasure regarding Perrucci’s work. The

Magistrate found that Perrucci “indicated that the work had been performed in a

workmanlike manner and refused to address” Whittington’s concerns, and he was

terminated.

{¶ 88} After Perrucci’s termination, according to the Magistrate, Michael Laughlin

inspected the work performed by Perrucci and indicated that “the work was not acceptable

and not of a workmanlike standard, and that he would not have paid for the work” if it was

done in his own home. The Magistrate found Laughlin’s testimony “was credible and

worthy of belief.” The Magistrate noted Hellman’s expert testimony and also determined

that Hellman “was credible and worthy of belief.”

{¶ 89} The Magistrate noted Perrucci’s inconsistent testimony between his

deposition and trial regarding the amount of construction work he has performed and

determined that Perrucci “was not credible or worthy of belief.” The Magistrate noted

that Perrucci filed a mechanic’s lien against Whittington’s property in the amount of

$5,336.00, and that he presented evidence at trial and in pleadings that any amount owed

equaled $4,925.04, “without any credible explanation being offered for the difference in

amounts.”

{¶ 90} The Magistrate found that Whittington is a “consumer,” Perrucci is a

“supplier,” and the parties engaged in a “consumer transaction” pursuant to the CSPA.

The Magistrate found that Perrucci violated the CSPA in nine ways, namely by: 1) filing

the mechanic’s lien in excess of the balance due per the agreement; 2) failing to perform

the restoration in a workmanlike manner and correct any defects; 3) failing to provide a
 -42-

written notice of the reasonably anticipated completion date; 4) failing to provide

Whittington with a list of repairs performed, including a list of materials, the amount

charged for labor and the identity of the individual performing the repairs; 5) failing to

provide Whittington with a written quotation indicating that the quotation is binding for five

days; 6) failing to provide a written receipt upon the initial payment stating whether the

deposit is refundable; 7) failing to provide Whittington with a written list of warranties,

notice of whether subcontractors will be used, whether Perrucci is insured under

appropriate workers’ compensation laws, and whether Perrucci met applicable licensing

and bonding requirements; 8) failing to provide a written contract containing the

anticipated completion date, type and brand of insulation to be installed, the number of

square feet to be covered and the “R-value” of the insulation, its thickness in inches, and

the number of packets to be used; 9) failure to provide a “CONSUMER INFORMATION

CARD” upon completion of the project. The Magistrate found that all of the above

violations of the CSPA “have already been deemed in violation of said Act by cases set

forth in the Ohio Attorney General’s Public Inspection File.”

{¶ 91} The Magistrate found that Whittington “established damages with

reasonable certainty in the amount of [$11,029.61] as set forth in the estimate of Dunn

Well Construction,” and that Whittington “elected to pursue damages, rather than

re[s]cission of the contract, as she was entitled to do.” The Magistrate found that

Whittington was also entitled to statutory damages in the amount of $200.00 for each of

Perrucci’s CSPA violations. According to the Magistrate, there “was sufficient evidence

to conclude” that Perrucci knowingly committed the violations, and that he failed to

establish “a ‘bona fide’ error defense at trial, nor was it asserted as an affirmative
 -43-

defense.”

{¶ 92} The Magistrate further concluded that “it is clear from the credible testimony

of the various witnesses that [Perrucci] breached his contract with [Whittington] by his

failure to provide services in a workmanlike manner.” According to the Magistrate,

Perrucci failed to acknowledge or correct the problems with his work as presented to him

by Whittington, and his conduct “would appear to be an act of engaging in a pattern of

inefficiency, or incompetency. Such a pattern of behavior has been held to be the basis

for a finding of an unfair or deceptive consumer sales practice * * *.” The Magistrate

found that the Dunn Well Construction estimate for damages “is reasonable” and that

Whittington is entitled to a judgment in that amount. The Magistrate determined that

Perrucci violated R.C. 1345.02 and 1345.03. The Magistrate noted that Whittington

submitted certification from the Public Inspection File of the Attorney General’s Office in

Exhibit D, E, and F, and that she is entitled to treble damages. However, the Magistrate

further noted that “the jurisdiction of the municipal court is only Fifteen Thousand Dollars

* * * and as such, a judgment cannot exceed that amount.” With respect to treble

damages, the Magistrate determined that “the most the municipal court can award is

Three Thousand Nine Hundred Seventy Dollars and Thirty –nine Cents, which would

bring the total judgment to the sum of Fifteen Thousand Dollars * * *.”

{¶ 93} The Magistrate further found that Perrucci “did not establish that he is

entitled to damages against the Defendant by a preponderance of the credible evidence

and as such [Whittington] should be granted judgment as to the Plaintiff’s complaint.”

The court noted that Whittington “is awarded reasonable attorney fees as to be

determined at a later hearing.”
 -44-

{¶ 94} On September 18, 2015, Perrucci filed a “Motion for Leave to File

Objections,” noting that he recently retained new counsel, and the court granted the

motion. Perrucci filed objections on January 4, 2016. Perrucci asserted that he “was

not regularly and continuously involved in the construction business and therefore can

have no CSPA liability.” He further asserted that the Magistrate relied primarily on

Hellman’s testimony, and that Hellman “was not competent to give this testimony because

he was not qualified on the subject matter.” According to Perrucci, the Magistrate relied

“on the speculative cost to repair estimate of [Hellman]. Even if accepted as valid, the

proper measure of damage is the cost to repair less the balance due on the original

contract, or $6,105. Any other outcome permits the Defendant to have windfall, which is

not the goal of any legal form of recovery.” Perrucci objected specifically as follows:

1. The Court Erred in Finding that Plaintiff was a Supplier under the

CSPA.

2. The Court Erred in Finding that Plaintiff Did Not Complete

Renovations in a Workmanlike Manner.

3. The Court Erred in Qualifying James Hellman as an Expert

Witness on Mobile Home Restoration Work, and in Finding that His

Opinions Were Based on Reliable Principles and Methods.

4. The Court Erred in Finding that Defendant’s Witnesses were

more credible than Plaintiff’s Witnesses.

5. The Court Erred in Calculating Breach of Contract Damages.

6. The Court Erred in Finding that Plaintiff was Given an

Opportunity to Cure Defects.
 -45-

7. The Court Erred in Refusing to Allow Shawn Allamon to Testify

About the Factual Assumptions Contained in Hellman’s Report.

{¶ 95} Whittington opposed Perrucci’s objections on February 25, 2016. We

note that Whittington only addressed five of Perrucci’s seven objections. On March 14,

2016, Perrucci filed a reply.

{¶ 96} The trial court issued its “Entry” overruling Perrucci’s objections and

adopting the decision of the Magistrate on November 22, 2016. Regarding Perrucci’s

assertion that he was not a supplier within the meaning of the CSPA, the court noted that

the “Magistrate was presented with two very different statements from [Perrucci] relating

to his business experience. One statement was made during [Perrucci’s] deposition,

where he claimed that he had performed this type of work about 30 times over the last

three years.” The court noted that at trial, however, Perrucci “appears to have changed

his testimony, stating that he had only done two construction jobs over the last two years.”

The court noted that Perrucci’s deposition testimony was used to impeach him.

{¶ 97} The court noted that this Court “has held that the Ohio Consumer Sales

Practices Act is applicable to home improvement products and services, as they are

‘consumer goods or services.’ ” The court specifically found Kaska’s testimony that he

did not recommend Perrucci to Whittington “not credible or worthy of belief.” The court

found that Perrucci “provided [Whittington] with a written estimate which had identified

him as ‘Mark Perrucci – Sani Home’, inferring a professional or business title.” The court

noted Kaska’s testimony that he believed construction work to be “part” of what Perrucci

does, and that he believed the majority of Perrucci’s work was in information technology,

and it noted Perrucci’s assertion that he was not engaged in construction on a regular
 -46-

basis. According to the court, “this does not establish that he was not in the construction

business or hold himself out [sic] as a person engaged in a construction business at the

time that [Perrucci] met [Whittington] and undertook the project of repairing [Whittington’s]

residence.” The court found that “[i]t only establishes that as of the date of this witness’

testimony, Mr. Kaska no longer believed that he was engaged in that line of work.” The

court determined that “a review of the transcript clearly demonstrates that [Perrucci] was

perceived as a ‘supplier.’ ”

{¶ 98} Regarding Perrucci’s second objection, the court noted that both Hellman

and Laughlin testified “that the work performed by the Plaintiff and his crew or

subcontractors was defective.” The court noted that Laughlin “has no interest in this

matter,” and that he testified as “a layperson with some experience and knowledge about

these types of matters.” The court noted that Hellman “was qualified as an expert

witness. * * * Mr. Hellman testified with specificity that the work that was performed was

not done in a workmanlike manner.” It was significant to the court that Hellman

“provided, during the direct examination and cross-examination, numerous specific

examples of what he was referring to. He testified as to the costs to correct the problems

resulting from the actions of [Perrucci] and his workers.”

{¶ 99} The court noted that under Evid.R. 702, “the test for whether an individual

qualifies to be determined an expert is whether that witness who is offered as an expert

will aid the trier of fact in the search of the truth,” and noted that Hellman was licensed as

a general contractor and registered as such in Montgomery County. The court further

noted that Hellman “has performed carpentry work for 40 years, and the issues that were

presented appeared to be concerned with carpentry.” The court noted that the basis of
 -47-

Whittington’s objection “appears from the transcript to have been based solely upon the

fact that Mr. Hellman did not observe [Perrucci] perform that work and could not testify

with specificity as to whether or not any problems with that work were the product of

[Perrucci’s] actions.” The court noted that there “do not appear to be any specific

objections made as to whether or not Mr. Hellman was in fact qualified to testify as an

expert.” The court further noted that a litigant’s failure to raise an issue at trial waives

the right to do so on appeal. The court noted that, assuming that Perrucci “had timely

raised objections to Mr. Hellman’s qualifications as an expert and that the [M]agistrate

overruled such objections, the Court finds that there was sufficient evidence introduced

to support the Magistrate’s finding that Mr. Hellman was qualified as noted above.”

{¶ 100} Regarding the Magistrate’s determination that Whittington’s witnesses

were more credible than Perrucci’s, the court noted that “courts won’t substitute their

judgment for that of the trier of facts on issues of witness credibility unless it is patently

apparent that the trier of fact lost its way.” The court noted that it conducted an

independent review of the record and found there is “more than sufficient evidence from

the transcripts and evidence submitted to support the Magistrate’s finding that [Perrucci]

and his witnesses were not credible or worthy of belief.”

{¶ 101} Regarding the Magistrate’s computation of damages, the court found that

while “it is true that the normal computation of damages would be for the court to subtract

the remainder of a contract price charged by [Perrucci] from any judgment due to

[Whittington], in this case, the Magistrate did not award any damages to [Perrucci] in order

for the damages to be credited against the amount granted to the judgment.” The court

noted that the “Court of Appeals in Sites v. Moore (1992) 79 Ohio App.3d 694 held that a
 -48-

‘Breaching party is not entitled to collect damages from a nonbreaching party’ in a suit for

breach of contract.” The court noted that its “review of the evidence indicates that the

estimate of damages by Mr. Hellman in fact was to correct the damages resulting from

the Plaintiff’s work. [Perrucci’s] argument that the estimate was speculative and therefore

not proper evidence of [Whittington’s] damages is contrary to both logic and law.” The

court noted that, based upon Perrucci’s argument, “the only measure of damages that

could be considered in any civil action would be those damages actually paid for.” The

court indicated that it examined the transcript and the estimate, and noted that it “would

appear that the estimate covers the repair for the work that was performed by [Perrucci],

not as characterized by [Perrucci] in his objections.” The court further found that there

was “sufficient evidence * * * to support a finding that [Whittington] had discussed her

concerns with [Perrucci] about the workmanship which he and his work crew had

performed and that he was discharged after he denied that there was a problem and

refused to address [Whittington’s] concerns.”

{¶ 102} Regarding Perrucci’s objection to the trial court’s refusal to allow Allamon

to testify about Hellman’s report, the Magistrate noted that counsel for Perrucci “appears

to have either read a different transcript of the proceedings than the one before the Court

or in the alternative not thoroughly reviewed the court’s official transcript.” The court

noted that counsel for Whittington “had timely requested a list of expert witnesses”

pursuant to Civ.R. 26(B)(5), and that counsel for Perrucci “appears to have acknowledged

that he did not supplement his answers as required under the civil rules and disclose

those parties as experts at a later date.” The court noted that Whittington “objected to

permitting those witnesses to testify as experts since [Perrucci] failed to comply with the
 -49-

civil rules. It is clear that the Magistrate was well within his rights to exclude those

witnesses from testifying.” The court noted that counsel for Perrucci “infers that the

Magistrate refused to allow Mr. Allamon to testify at all, but that is not the case. The

transcript of the proceeding shows that the Magistrate did allow Mr. Allamon to testify,

only not as an expert.”

{¶ 103} The hearing on the issue of attorney fees was held on April 24, 2017;

counsel for Whittington, Jonathan Zweizig and Attorney Robert J. Huffman, Jr., testified.

Zweizig testified that he was seeking attorney fees in the amount of $19,908.43. He

presented Exhibit AA, an itemized statement of all of his costs and fees in that amount,

which was generated by a software package for billing, and he stated that the statement

was accurate.

{¶ 104} Huffman testified that his practice is general litigation, including

construction law. Counsel for Perrucci stipulated to Huffman’s qualifications as an expert.

Huffman testified that he reviewed Exhibit AA and that the all of the hours billed were

reasonable, and that none of the work was unnecessary or redundant. He stated that

Exhibit AA reflected an hourly rate of $250.00 per hour from 2012 until 2015, and then an

hourly rate of $260.00 from 2016 until 2017, and an hourly rate of $275.00 for the year of

2017. Huffman stated that he has worked “with and against” Zweizig and knows him to

be “very competent in handling all aspects of civil litigation.” Huffman testified that

Zweizig’s rates were in the average range and “within the accepted standards of this

market.” Huffman testified that he quantified the time reflected in Exhibit AA and

attributed “80 percent of the invoice to the consumer claim” to a reasonable probability.

He stated that “you can’t pursue the consumer claim without defending the contract claim.
 -50-

They’re intertwined in terms of elements in proof or disproof if the original contract claim

is trying to prove that it was done in a workmanlike manner you are likewise trying to

establish that that wasn’t true.”

{¶ 105} On cross-examination, Huffman stated that Perrucci asserted a single

claim for breach of contract, and Whittington asserted 13 affirmative defenses, the tenth

of which was a violation of the CSPA. He stated that Whittington’s four counterclaims

were for breach of contract, negligence, failure to perform in a workmanlike manner, and

the CSPA claim. Huffman stated that he has prosecuted and defended CSPA claims in

his practice, although not in the last three years. He stated that he is “staying up to date

on it, I’m familiar with the Attorney General’s case file.” Huffman testified as follows: “I

have looked this bill over about four times and I would say to my recollection I never, in

looking it over again now, for about the fourth time, I do not see the words Consumer

Sales Practices Act in the invoice, or on Exhibit AA.” Counsel for Perrucci objected to

the admission of Exhibit AA because the “third-party” who “keystroked” the entries was

not available to testify. Zweizig responded that he writes “the time down, the secretary

* * * types it up. That is then presented in a monthly packet that we receive on her case

and I review it and approve it to make sure it was timed accurately and then sent out for

billing and summarized in Exhibit AA. So yes, it was reviewed and approved by me

before it ever goes out * * *.” Exhibit AA was admitted.

{¶ 106} The Magistrate issued a decision in August 2017 awarding Whittington

$15,926.74 in attorney fees. Perrucci objected on October 5, 2017, with leave of court.

Whittington opposed the objections on October 10, 2017, and the court overruled the

objections on November 27, 2017.
 -51-

{¶ 107} Perrucci asserts six assignment of error herein. His first assignment of

error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT APPELLEE MET

HER BURDEN OF PROVING APPELLANT WAS A SUPPLIER UNDER

THE CSPA.

{¶ 108} Perrucci asserts that to “the extent the trial court found Perrucci was a

‘supplier’ simply because Defendant perceived him to be one, such finding is clearly

inconsistent with the definition of ‘supplier’ set forth in R.C. §1345.01 and constitutes an

abuse of discretion.” Perrucci asserts that Whittington failed to provide any evidence

that Perrucci was a supplier. For example, “[Whittington] did not offer any proof that

Perrucci had a construction company, regularly worked in construction, or actively sought

out construction work during the applicable time period.” (Emphasis sic.) Perrucci

asserts that “when read as a whole, Kaska’s testimony is entirely consistent,” and further

consistent with Perrucci’s. Perrucci asserts that he “does not have a construction

business or employees, does not advertise or otherwise seek out construction work, and

only performed this construction job for Defendant because he was recommended by

Kaska.” According to Perrucci, he and “Kaska testified that Perrucci has the skills and

experience to perform construction work, but from 2010 to the present he has been

working full time in the sanitation and information technology business and only taking a

few small jobs on the side.” Perrucci asserts that he corrected his “deposition mistake”

at trial regarding his history of construction work. Perrucci asserts that his and Kaska’s

trial testimony remain “unrebutted.”

{¶ 109} Whittington responds that Perrucci’s “attempt to ‘correct’ his ‘mistake’ at
 -52-

trial conveniently overlooks the fact that [Perrucci] never bothered to ‘correct’ his mistake

when he exercised his right to review his deposition transcript.” According to

Whittington, Perrucci’s “inability to keep his story straight as to his prior work experience

not only serves to refute the instant Assignment of Error but, in addition, also lays the

groundwork for perhaps why the Magistrate expressly found that [Perrucci] ‘was not

credible or worthy of belief’. ”

{¶ 110} As this Court has previously noted:

Pursuant to Civ.R. 53(D)(3)(b), a party who disagrees with

a magistrate's proposed decision must file objections to said decision.

Claims of trial court error must be based on the actions taken by the trial

court, itself, rather than the magistrate's findings or proposed decision.

When reviewing objections to a magistrate's decision, the trial court is not

required to follow or accept the findings or recommendations of

its magistrate. Breece v. Breece, 2d Dist. Darke No. 99-CA-1491, 1999 WL

999759 (Nov. 5, 1999); Seagraves v. Seagraves, 2d Dist. Montgomery Nos.

15047 and 15069, 1995 WL 559970 (Aug. 25, 1995). In accordance

with Civ.R. 53, the trial court must conduct an independent review of the

facts and conclusions contained in the magistrate's report and enter its own

judgment. Dayton v. Whiting, 110 Ohio App.3d 115, 118, 673 N.E.2d 671

(2d Dist. 1996). Thus, the trial court's standard of review of

a magistrate's decision is de novo.

An “abuse of discretion” standard is the appellate standard of review.

When an appellate court reviews a trial court's adoption of a magistrate's
 -53-

report for an abuse of discretion, such a determination will only be reversed

where it appears that the trial court's actions were arbitrary or

unreasonable. Proctor v. Proctor, 48 Ohio App.3d 55, 60-61, 548 N.E.2d

287 (3d Dist. 1988). Presumptions of validity and deference to a trial court

as an independent fact-finder are embodied in the

the abuse of discretion standard. Whiting, supra.

Lewis v. Lewis, 2d Dist. Greene No. 2013 CA 68, 2014-Ohio-958, ¶ 10-11.

{¶ 111} “The Consumer Sales Practices Act prohibits unfair or deceptive acts and

unconscionable acts or practices by suppliers in consumer transactions.” Einhorn v. Ford

Motor Co., 48 Ohio St.3d 27, 29, 548 N.E.2d 933 (1990). As noted in Einhorn:

The Consumer Sales Practices Act 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. Roberts & Martz, Consumerism

Comes of Age: Treble Damages and Attorney Fees in Consumer

Transactions—the Ohio Consumer Sales Practices Act (1981), 42 Ohio St.

L.J. 927, 928–929.

Id.

{¶ 112} R.C. 1345.02(A) provides that no “supplier shall commit an unfair or

deceptive act or practice in connection with a consumer transaction.” R.C. 1345.01(C)

provides: “ ‘Supplier’ means a seller, lessor, assignor, franchisor, or other person

engaged in the business of effecting or soliciting consumer transactions, whether or not

the person deals directly with the consumer.” R.C. 1345.01(D) provides: “ ‘Consumer’

means a person who engages in a consumer transaction with a supplier.” R.C.
 -54-

1345.01(A) provides: “ ‘Consumer transaction’ means a sale, lease, assignment, award

by chance, or other transfer of an item of goods, a service, a franchise, or an intangible,

to an individual for purposes that are primarily personal, family, or household, or

solicitation to supply any of these things.”

{¶ 113} As noted by the Southern District Court of Ohio, Western Division:

Although no Ohio court has defined the level of business activity

required for a finding that one is “engaged in the business of” effecting or

soliciting consumer transactions, the Defendant urges and the Court agrees

that the phrase implies more than one isolated sale, especially when that

sale is not within the seller's usual course of business. The phrase “engaged

in the business of” is commonly used in statutory schemes and has

generally been held to connote continuous or regular activity, rather than a

singular or isolated sale. See United States v. Tarr, 589 F.2d 55 (1st

Cir.1978) (the words “to engage in the business of” strongly imply more than

one isolated sale or transaction); Fillippo v. S. Bonaccurso & Sons, Inc., 466

F.Supp. 1008 (E.D.Pa.1978) (“being engaged in an activity requires more

than a single act or transaction or occasional participation”); UFITEC, S.A.

v. Carter, 20 Cal.3d 238, 571 P.2d 990, 142 Cal.Rptr. 279 (1977) (the

phrase “engaged in the business of” connotes a certain regularity of

participation).

Moore v. Florida Bank of Commerce, 654 F.Supp. 38, 41 (S.D.Ohio 1986).

{¶ 114} We conclude that the evidence supports the trial court’s determination that

Perrucci was engaged in the business of construction, as a supplier, at the time he agreed
 -55-

to repair the damage to Whittington’s mobile home. The trial court correctly noted that

Perrucci’s credibility at trial was impeached by his deposition testimony. At his

deposition, Perrucci testified that he had “been in the construction industry for about 35

years,” and that he had “35 years of experience on the job.” He testified that in the last

three years, he had 30 construction jobs. He testified that he learned of the Whittington

job from Kaska, who “told me there was a woman who had a job if I would like to take a

look at it.” He testified that Service Master, where Kaska is employed, does not do

construction work, and that they assign the work to “various contractors” in “a pool they

just start calling.” He testified that he “got Connie’s number from Bill and I called her up,

set up an appointment and went up the next day.” While Perrucci testified that the final

estimate was prepared by Foremost, the document provides: “Mark Perrucci – Sani

Home” on every page and identifies Perrucci as the “estimator.” The following exchange

occurred in Perrucci’s deposition regarding “Sani-Home”:

Q. Did [Sani-Home] do the work on the home or did you do the work

on the home?

A. I did the work on the home. Sani Home was a company that I

run that had a bank account established.

Q. Just for this project or for your construction projects?

A. No, it was for construction projects.

(Emphasis added.)

{¶ 115} At his deposition, Perrucci was asked if he had ever heard of the CSPA,

and he said no. We find the evidence supports the trial court’s determination that

Perrucci was not credible.
 -56-

{¶ 116} Kaska’s testimony that he did not recommend Perrucci to Whittington

defies credulity, as the trial court determined. It is clear from his testimony that but for

Kaska, Whittington would not have met Perrucci. Kaska, who has extensive experience

in the construction industry, who has known Perrucci since 1995 or 1996, who regularly

works with “lots” of contractors in the course of his business, and who believed Perrucci

capable of performing the work, provided Whittington with Perrucci’s name as a potential

contractor for the job. Since Perrucci was a supplier engaged in a consumer transaction

while working on Whittington’s mobile home, his first assigned error lacks merit and it is

overruled.

{¶ 117} Perrucci’s second assignment of error is as follows:

THE TRIAL COURT ERRED IN QUALIFYING JAMES HELLMAN

AS AN EXPERT WITNESS ON MOBILE HOME RESTORATION WORK,

AND IN FINDING THAT HIS OPINIONS WERE BASED ON RELIABLE

PRINCIPLES AND METHODS.

{¶ 118} According to Perrucci, the “trial court found that Hellman was qualified as

an expert witness because he previously testified as an expert before the court.

However, just because Hellman may be an expert in some aspects of constructions [sic]

does not mean he is an expert on the issues before the court in this case.” Perrucci

asserts that “the issues before the court in this case were the proper standard of care for

repairing a mobile home and the way in which Perrucci’s work compared to that standard.”

Perrucci argues that the “only license [Hellman] holds is a Montgomery County general

contractor license; he does not hold a license in plumbing, electrical, or HVAC work.”

According to Perrucci, the “most egregious aspect of Hellman’s testimony is that he failed
 -57-

to show that the methodology underlying his testimony is scientifically valid. It is apparent

from the transcript that Hellman applied the wrong construction code when doing his

analysis and lacked first-hand knowledge of key facts.”

{¶ 119} Perrucci asserts as follows:

Hellman bases his opinion that the floors were not properly

reinstalled on the Housing and Development Code, which only applies to

mobile homes manufactured after 1976. * * * Hellman stated that he used

the Housing and Development Code because the mobile home was

manufactured in 1989. * * * When asked how he knew the age of the mobile

home, Hellman stated that he relied solely on the owner’s recollection. * * *

He did not provide any evidence that the owner’s recollection was accurate.

In fact, the Miami County Auditor’s records indicate that the mobile home

was actually made in 1974. * * * This is an important fact because the Code

changed from 1974 to 1976. Hellman was unfamiliar with the applicable

building code, failed to review easily accessible public records to determine

the age of the mobile home, and reviewed the wrong building code because

he relied upon the owner’s recollection and did not verify the date of the

data, and his opinions were both wrong and inadmissible. His assessment

of floor construction was not scientifically valid, leading him to incorrect

conclusions.

{¶ 120} Perrucci further asserts that Hellman “relied on third-party testimony.

Evid.R. 703 requires that opinion testimony be based on facts perceived by the expert or

admitted in evidence at the hearing. Opinions based on the knowledge and advice of third
 -58-

parties are inadmissible.” (Emphasis added.) According to Perrucci, “Hellman based

his opinion that Defendants could not have repaired the mobile home in the way they

claimed solely on conversations with a mobile home manufacturer.” Perrucci argues the

fact that “Hellman had to consult with an expert on mobile home manufacturing to form

his opinion, which witness was not available at trial for Plaintiff to cross-examine, is the

clearest reason why he was not competent to serve as an expert in this case.” He argues

that in the absence of Hellman’s testimony, Whittington’s “defense that Plaintiff did not

make repairs in a workmanlike manner must fail.”

{¶ 121} We conclude that Hellman was properly qualified as an expert in carpentry

by the trial court. Evid.R. 702 provides:

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the

testimony;

(C) The witness' testimony is based on reliable scientific, technical,

or other specialized information. * * *

{¶ 122} As this Court has previously noted:

Foundational requirements for admission of an expert's opinion

testimony are set forth in Evid.R. 703 and 705. Evid.R. 703 provides, “The

facts or data in the particular case upon which an expert bases an opinion
 -59-

or inference may be those perceived by the expert or admitted in evidence

at the hearing.” Evid.R. 705 provides, “The expert may testify in terms of

opinion or inference and give the expert's reasons therefor after disclosure

of the underlying facts or data. The disclosure may be in response to a

hypothetical question or otherwise.”

“Where an expert bases his opinion, in whole or in major part, on

facts or data perceived by him, the requirement of Evid.R. 703 has been

satisfied.” State v. Solomon (1991), 59 Ohio St.3d 124, 570 N.E.2d

1118, syllabus. In Solomon, the trial court excluded expert testimony

because the experts' opinions were based, in part, on medical and police

reports not in evidence. The Supreme Court of Ohio held that the expert

testimony should have been admitted because the experts had personally

examined the defendant and “thus, had based their opinions on facts or

data perceived by them.” Id. at 126. See also State v. Hoover–

Moore, Franklin App. No. 03AP–1186, 2004-Ohio-5541, ¶ 35 (“the Ohio

Supreme Court adopted a more relaxed interpretation of Evid.R. 703 in

[Solomon]”).

Fry v. King, 192 Ohio App.3d 692, 2011-Ohio-963, 950 N.E.2d 229, ¶ 7-8 (2d Dist.).

{¶ 123} As this Court has further noted:

It is well established that the expert witness need not be the best

witness on the subject. Alexander [v. Mt. Carmel Med. Ctr., 56 Ohio St.2d

155], at 159, 383 N.E.2d 564. “[T]he test of admissibility is whether a

particular witness offered as an expert will aid the trier of fact in the search
 -60-

of the truth.” Ishler v. Miller (1978), 56 Ohio St.2d 447, 453, 10 O.O.3d 539,

384 N.E.2d 296.

Whether a witness is qualified to testify as an expert is a matter for

the court to determine pursuant to Evid.R.104 (A). Bedard v. Gardner,

Montgomery App. No. 20430, 2005-Ohio-4196, ¶ 58. The competency of

the proposed expert witness is a matter left to the discretion of the trial

court, and the court's ruling will be reversed only for an abuse of discretion.

Alexander, 56 Ohio St.2d at 157, 10 O.O.3d 332, 383 N.E.2d 564.

Schutte v. Mooney, 165 Ohio App.3d 56, 2006-Ohio-44, 844 N.E.2d 899, ¶ 25-26 (2d

Dist.).

{¶ 124} Hellman testified that he grew up in the construction business, working

with his grandfather. He testified that he has 40 years of experience as a carpenter.

Carpentry is defined in part as “the art or trade of a carpenter; specifically: the art of

shaping and assembling structural woodwork.” See www.meriam-

webster.com/dictionary/carpentry (accessed July 14, 2018). The majority of the work

performed by Allamon was carpentry as reflected in the final estimate. The transcript is

clear that the bulk of the problems at the mobile home stemmed from the installation of

the sub-floor, the removal of the laundry room wall, and the replacement of the vanity, all

of which involved carpentry. Further, Hellman has owned Dunn Well Construction since

2000. There is no indication that the trial court qualified Hellman as an expert witness

simply because he had previously provided expert testimony in another matter before the

court. Hellman testified that he read the final estimate and investigated the mobile home

to determine if the work that Perrucci committed to doing had been done properly. We
 -61-

have no basis to conclude, as Perrucci asserts, that Hellman’s opinion is based on “the

wrong construction code.” Hellman did not delineate a specific construction code, he

merely indicated that there are specific codes applicable to mobile homes.

{¶ 125} Regarding Perrucci’s argument about the age of the mobile home, based

upon Plaintiff’s Exhibit 4, which is a printout from the Miami County Auditor’s website of

Whittington’s property, we note that the Exhibit indicates, in part, as follows under a

section entitled “Improvements”:

Description Length Width Total Year Appraised Value
Area Built (100%)

***

Miscellaneous 52 9 468 1974 $1,200.00

{¶ 126} We cannot conclude with certainty that the miscellaneous item is the

mobile home, as Perrucci suggests. The sketch of Whittington’s mobile home attached to

the final estimate reflects dimensions of 50 feet two inches by 13 feet six inches, and

Whittington’s kitchen is not depicted in the drawing. Even if Hellman was mistaken

regarding the age of the mobile home, we cannot conclude that the error impacted his

testimony regarding carpentry; in other words, his testimony was helpful to the trier of

fact.

{¶ 127} For the foregoing reasons, we conclude that the trial court did not abuse

its discretion in admitting Hellman’s expert testimony, since his expertise in carpentry

qualified him to testify. Perrucci’s second assignment of error is overruled.

{¶ 128} Perrucci’s third assignment of error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT APPELLANT

BREACHED THE CONTRACT WITH APPELLEE AND FAILED TO
 -62-

COMPLETE THE RENOVATIONS IN A WORKMANLIKE MANNER.

{¶ 129} Perrucci argues that it “is undisputed that the parties had a contract

whereby Perrucci performed the necessary work set forth in the insurance estimate for

the amount of $8,682. * * * It is further undisputed that Perrucci completed the work, and

that [Whittington] did not pay for the all of the work.” Perrucci asserts that Whittington

“failed to present any evidence to suggest that [Perrucci’s] work was not done in a

workmanlike manner.” Perrucci asserts that Whittington “is incapable of testifying about

how Perrucci’s work deviated from the applicable standard of care.” Perrucci asserted

that Whittington’s “actions suggest that the work was completed in a workmanlike

manner,” since she has “lived in the property without doing any corrective work.”

{¶ 130} Perrucci further asserts that Laughlin “is not an expert in the insurance

industry and similarly cannot testify about the appropriate standard of care.” Perrucci

asserts that Laughlin “was either not being truthful when he testified that the quality of the

work is poor, or he acted in dereliction of his duty as an insurance adjuster by paying out

a claim before the work was done correctly. Either way, his credibility is suspect.”

Perrucci again asserts that Hellman’s testimony “should have been stricken in its entirety.”

{¶ 131} Perrucci argues that testimony “about using a different method or

alternative mode of operation does not equate to defective work, or a failure to meet the

standard of care.” Perrucci argues that Hellman “never presented evidence as to the

industry standard or how [Perrucci’s] work differed from that standard.”

{¶ 132} Perrucci asserts that Allamon “used his judgment and experience to * * *

chisel out the old flooring and slide the new floor underneath.” Perrucci asserts that

“Hellman misunderstands the scope of work. Perrucci was hired to do remedial repair
 -63-

work to a specific area in the mobile home that was water damaged, based on an estimate

of necessary work from Defendant’s insurance adjuster.” According to Perrucci,

“Hellman opined that Perrucci should have renovated the entire mobile home floor.

Moreover, he did not specifically state that the failure to replace the entire floor was the

cause of the ‘springiness,’ he merely stated that it could be caused by any number of

things.” Regarding the underbelly of the mobile home, Perrucci asserts that “the portion

of the underbelly that Hellman stated was in good condition was the only portion that

Perrucci was hired to repair because it was underneath the water damage.” Regarding

the laundry room, Perrucci noted that “Hellman testified that Perrucci should not have

moved the laundry room wall because it may have been a shear (load bearing) wall,” but

that he did not know if the wall was in fact a shear wall. Finally, according to Perrucci,

“Hellman’s testimony about the shower, vanity top, furnace, and bathtub similarly fails to

specify what a skilled contractor would do under the circumstances, and fails to take into

account that contractors often adjust their work based on the extent of damage they find

as work progresses.” Perrucci asserts that Hellman alluded “to his own personal

preferences and opinions, rather than stating the correct standard or method * * *.”

{¶ 133} Perrucci argues that while he “did not have the burden to prove his work

was done pursuant to the industry standard, he nonetheless presented testimony by three

construction professionals – Plaintiff himself, Allamon, and Kaska – who have over 43

years of combined construction experience, and who testified that the work was done

according to industry standards, that any variations from the estimate were requested

and approved by [Whittington], and that Defendant was consistently telling them how

happy she was with the work.” Perrucci asserts that he provided “photos of the work
 -64-

before and after, and an invoice signed by [Whittington] upon which she wrote ‘nice job’

and drew a smiley face.”

{¶ 134} Perrucci asserts that Whittington did not give him “an opportunity to cure

defects,” and that failure “to give an opportunity to cure amounts to a breach.” He asserts

that the “only testimony offered by [Whittington] was her nonspecific statement that she

was unhappy with everything throughout the process, and that [Perrucci] refused to fix it.”

Perrucci asserts that he gave “Doug” money to complete the “three or four items”

Whittington was unhappy with at their final meeting, and that if “any issues remained after

that meeting, [Perrucci] was never notified and given an opportunity to cure them.”

{¶ 135} Finally, Perrucci argues that even if “the court was correct in finding all of

[Whittington’s] witnesses to be credible, and none of [Perrucci’s] witnesses to be credible

* * *, there was no basis for finding in Defendant’s favor. The workmanlike standard is a

legal standard and as such it must be proved with something more than a layman’s

opinion.”

{¶ 136} Whittington responds that Perrucci failed to produce an independent lay or

expert witness.

{¶ 137} As this Court recently noted:

“ ‘The essential elements of a cause of action for breach of contract

are the existence of a contract, performance by the plaintiff, breach by the

defendant, and resulting damage to the plaintiff.’ ” Winner Brothers, L.L.C.

v. Seitz Elec., Inc., 182 Ohio App.3d 388, 2009-Ohio-2316, 912 N.E.2d

1180, ¶ 31 (citation omitted). The common law also imposes a duty upon

builders and contractors to perform their duties in a workmanlike manner.
 -65-

Hanna v. Groom, Franklin App. No. 07AP-502, 2008-Ohio-765, ¶ 19. This

implied duty requires construction professionals “ ‘to act reasonably and to

exercise the degree of care which a member of the construction trade in

good standing in that community would exercise under the same or similar

circumstances.’ ” Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-

5081, 878 N.E.2d 66, ¶ 19, quoting from Seff v. Davis, Franklin App. No.

03AP-159, 2003-Ohio-7029, ¶ 19. The proper measure of damages for

breach of this implied duty is the cost of repair.

Sullivan v. Curry, 2d Dist. Montgomery No. 23293, 2010-Ohio-5041, ¶ 43.

{¶ 138} It is undisputed that the final estimate provided the basis for the parties’

oral contract for the repair of Whittington’s mobile home in exchange for $8,681.55. The

final estimate covered repairs to specific areas of Whittington’s home, namely the hallway,

the bathroom, the laundry room, the master bedroom, the office, the living room, the

furnace room, and the underbelly. We note that on cross-examination, Allamon, who

performed the majority of the work there, acknowledged that he did not have the final

estimate in his possession, but that “I got what to do from Mark.” Considering both the

lay and expert witness testimony together, and deferring to the trial court’s assessment

of witness credibility, we conclude that Perrucci’s breach of contract was established.

{¶ 139} For example, in the hallway, the final estimate provided in part, “52. * * * 2

carpenters 4 hours each on day one to remove lift the walls, remove the damaged particle

board and prep for the new osb subfloor.” Whittington testified that in the hallway, “when

they laid the floor down, the wooden part, it doesn’t go underneath my wall, and when

you walk, it’s like a springboard and if you get too close to the edge, and get to the wall,
 -66-

your shoe will actually go underneath that.” Laughlin’s testimony was consistent with

Whittington’s about the flooring along the walls in the home. Hellman testified that he

observed that “it was cut along those walls, and the boards were pulled out and replaced

up to the wall. There was no sign of putting wood underneath * * * these walls,” and that

“you can’t chisel that wood out from under there for two reasons. It’s glued and screwed

down.” (Emphasis added.) While Allamon testified that he used “ledger boards” to

anchor the sub-floor, there is no provision for such a system in the contract, and Allamon’s

testimony, as the trial court noted, was not credible.

{¶ 140} In the bathroom, the final estimate provided for, in part, “79. Bathtub –

Detach & reset /Tub had to be removed to replace subfloor underneath.” The final

estimate also provided, “81. * * * Remove particle board flooring in the bath and under

the vanity and shower.” It provides, “85. Toilet – Detach & reset,” and “86. Vanity –

Detach & reset.”

{¶ 141} While Allamon testified that he removed the tub, replaced the sub-floor

underneath, and then replaced the tub, Whittington and Hellman testified that there was

a large hole under the tub. Laughlin observed that the tub was not level. Perrucci

testified that he did not remove and replace the toilet. While the contract required

Allamon to remove the damaged sub-floor under the shower, he testified that he did not

do so. Allamon testified that he gave Whittington “the option of replacing the fixtures and

I re-used her old fixtures.” He stated that Plaintiff’s Exhibit 26 depicts “a scribed in vanity

top with a double-bowl sink with the old fixtures,” with a new cabinet underneath.

Whittington, however, testified that she originally had almond-colored sinks, that she

wanted to keep those sinks, but that white sinks were installed that “don’t match.” The
 -67-

final estimate does not provide for new sinks. While the final estimate provided for the

vanity to be detached and reset, Perrucci testified that he replaced the vanity and put in

a new “ledger system.” Laughlin observed that the countertop was new and crooked, and

Hellman reported that it was too small for the space it is in, which Perrucci “tried to cover

up by using a ton of caulk and poor trim work.”

{¶ 142} In the laundry room, the final estimate provided for the washer and dryer

to be removed and reset after the sub-floor was replaced. Instead, Perrucci moved the

appliances into the bathroom. Whittington testified that she did not want the appliances

moved, and that “now when you open the [appliances’] doors, they hit each other.”

Whittington testified that she “never swapped any work out” on the project. Perrucci

testified that he did not know if the wall he moved was load-bearing. The final estimate

further called for new vinyl flooring in the laundry room, and Whittington testified that it

was never put down.

{¶ 143} The final estimate provided for the carpet and pad to be removed and

replaced in the master bedroom, and Whittington testified that the floor under the doorway

“fell through” under the carpet, and that she fell there.

{¶ 144} While Allamon testified that he replaced the sub-floor in the furnace room,

Laughlin testified that the floor “didn’t seem to be holding completely level and sturdy but

then there was also a hole in the wall.” Hellman reported that the “furnace floor is

sinking.”

{¶ 145} Regarding the underbelly, Allamon testified that he put R 38 insulation

under the home along with a moisture barrier, as provided for in the estimate. The

estimate calls for blown-in insulation, and Perrucci testified that he installed the vapor
 -68-

barrier and the insulation himself, that he told Whittington he was not going to use “blow-

in insulation,” and that she was “fine with it.” Whittington testified that her pipes froze

during the month of trial.

{¶ 146} Regarding Perrucci’s assertion that he was not given the opportunity to

cure the defects, Whittington testified credibly that she told him what she wanted done to

fix her walls and floor, and that he told her that it could not be done.

{¶ 147} We conclude that Perrucci’s assertion that Whittington’s conduct in

remaining in the home somehow establishes her satisfaction with his work defies logic,

given her trial testimony.

{¶ 148} Finally, Whittington, Hellman, and Laughlin testified specifically, and

credibly, as to the damage to her home, and simple common sense dictates that if, after

a restoration project is completed, the new floors are unstable, a wall and Whittington’s

appliances have been moved against Whittington’s wishes, the ground is visible beneath

the bathtub, the vanity is crooked and not what Whittington requested, etc., that the

project was not completed in a workmanlike manner. Since Perrucci clearly breached

his contract with Whittington and failed to complete the repair to Whittington’s mobile

home in a workmanlike manner, his third assignment of error is overruled.

{¶ 149} Perrucci’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT THE MAGISTRATE

CORRECTLY CALCULATED BREACH OF CONTRACT DAMAGES AND

THAT DAMAGES WERE PROVEN WITH SPECIFICITY.

{¶ 150} Perrucci argues that the “correct measure of damages is the cost of repair

less the amount still owing on the contract.” He asserts that by “failing to subtract the
 -69-

contract price from the cost of repair, the trial court is essentially imposing punitive

damages on Perrucci and giving Defendant a double recovery.” He argues rather “than

awarding Defendant a repaired mobile home, the trial court awarded Defendant a

repaired mobile home and $4,925 in cash for Perrucci’s breach of contract.” He argues

that if he is in breach, “the proper measure of damages for that breach is the cost to repair,

less the balance of $4,925 owed on the contract.”

{¶ 151} Perrucci asserts that “Hellman’s estimate should have been excluded

because it represented the cost to repair the entire mobile home, rather than the area that

was water damaged.” He argues that this “is clearly outside the scope of the work

contemplated by the parties at the time of contracting: repair of a small area around the

bathroom and laundry room that had been damaged.” According to Perrucci, “Hellman’s

estimate would give Defendant a fully renovated mobile home, which is outside the proper

measure of damages.” Perrucci argues that the “estimate Hellman compiled was

speculative and not based on the probable cost of repairs.”

{¶ 152} Whittington responds that “the Magistrate did not award any damages to

the Appellant in order for the damages to be credited against the amount granted to the

judgment.” She argues that, based “upon the Appellant’s argument, the only measure

of damages that could be considered in any civil action would be those damages actually

paid for.” Whittington argues that “review by the Trial Court only served to confirm the

Magistrate’s factual findings and legal conclusions that the estimate covered the repair

for the work that was actually performed by [Perrucci], not as characterized by the

Appellant in his brief.”

{¶ 153} In reply, Perrucci asserts that the “ ‘expectation damages’ standard is the
 -70-

proper measure of damages in a case for failure to perform a construction contract in a

workmanlike manner, and thus the trial court should have subtracted the amount

remaining on the contract from the damages award.” Perrucci asserts that “Hellman’s

estimate was to repair the entire mobile home as opposed to the small area designated

in the contract.” In a footnote, he asserts that if this Court “finds that Appellant is not a

supplier, and treble damages should not be awarded, then the award will be well under

the Court’s jurisdictional limit.”

{¶ 154} We first note that Perrucci’s assertion that Hellman’s estimate is

speculative lacks merit. Hellman’s estimate is dated March 21, 2013, and he testified

almost six months later. He merely indicated that the estimate might be a little bit low,

given fluxuating prices. Finally, having determined that Perrucci is a supplier, we conclude

that this assignment of error lacks merit. Pursuant to R.C. 1345.09(B), Whittington is

entitled to treble damages in the amount of $33,088.83, but as the Magistrate noted, the

municipal court could only award $3,970.39 (in addition to the $11,029.61 in damages)

due to the court’s jurisdictional limit of $15,000.00. See R.C. 1901.17. Even if the

$4,925.00 were to be deducted from the $11,029.61 damage award, leaving a balance of

$6,104.61, the trial court’s award would remain the same, because treble damages would

have been $18,313.83, above the court’s jurisdictional limit of $15,000.00. Perrucci’s

fourth assignment of error is overruled.

{¶ 155} Perrucci’s fifth assignment of error is as follows:

THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF

SHAWN ALLAMON REGARDING FACTUAL ASSUMPTIONS

CONTAINED IN JAMES HELLMANS’ EXPERT REPORT.
 -71-

{¶ 156} According to Perrucci, the “Magistrate erred in excluding testimony about

the accuracy of Hellman’s report from Allamon, a fact witness with firsthand knowledge

of the work done on [Whittington’s] mobile home.” Perrucci asserts that Allamon “was

asked whether any of his work needed to be redone.” He argues that “Allamon did the

work in question himself and had firsthand knowledge about the quality of the work

bearing on an issue for decision, namely whether the repairs were of workmanlike quality,

and whether the items listed in Hellman’s estimate needed to be repaired.”

{¶ 157} Whittington responds that the “instant Assignment of Error completely

misrepresents the facts of the case. Witness Shawn Allamon was not permitted by the

Trial Court to testify as an expert witness based upon [Perrucci’s] failure to properly

identify him as an expert witness. The trial court did, however, allow Shawn Allamon to

testify at trial as a non-expert witness.” We agree with Whittington, and note that Allamon

testified extensively regarding his work on the project and his experience. Perrucci

mischaracterizes the record, and his fifth assignment of error is overruled.

{¶ 158} Perrucci’s final Assignment of Error is as follows:

THE TRIAL COURT ERRED IN CALCULATING THE AMOUNT OF

ATTORNEYS’ FEES DEFENDANT WAS ENTITLED TO RECOVER.

1. The trial court erred in relying on Robert J. Huffman Jr.’s testimony that 80%

of Defendant’s fee bill was attributed to Defendant’s CSPA claims.

2. The trial court erred in finding that 100% of the fees associated with

Defendant’s CSPA claim were reasonable and necessary.

{¶ 159} Perrucci asserts that Huffman “lacks the experience and qualifications

necessary to testify as an expert on the reasonableness of fees expended upon the
 -72-

prosecution or defense of CSPA claims.” He argues that Huffman “failed to provide

reliable evidence that 80%” of Zweizig’s bill “was attributable to prosecuting Defendant’s

CSPA claims.” Perrucci asserts that he brought a single claim for breach of contract,

and that only one of Whittington’s 13 affirmative defenses involved the CSPA and only

one of her four counterclaims was a CSPA claim. Perrucci notes that Huffman testified

that the words “Consumer Sales Practices Act” do not appear in Exhibit AA. He asserts

that Exhibit AA “was not sufficiently specific to allow Huffman to determine what portion

of the work was spent on CSPA claims.”

{¶ 160} Perrucci asserts that “after finding that 80% of the attorney’s fees were

attributable to Defendant’s CSPA claims, the court was required to determine if all of the

CSPA-related fees were reasonable.” Perrucci asserts that the Magistrate did not state

the basis for finding that all CSPA claims were fair and reasonable. He argues that “the

CSPA claims were only related to a few specific factual allegations, the litigation of which

was not particularly time consuming, novel, or labor intensive.”

{¶ 161} “[P]ursuant to R.C. 1345.09(F), a trial court may award a consumer

reasonable attorney fees when the supplier in a consumer transaction intentionally

committed an act or practice which is deceptive, unfair or unconscionable.” Einhorn, 48

Ohio St.3d 27, 30, 548 N.E.2d 933. As this Court has previously noted:

A court calculates reasonable attorney's fees by first calculating the

“lodestar,” “the number of hours reasonably expended on the case times an

hourly fee.” Bittner v. Tri–County Toyota, Inc., 58 Ohio St.3d 143, 145, 569

N.E.2d 464 (1991). In this calculation, the court must exclude “any hours

that were unreasonably expended, e.g., hours that were redundant,
 -73-

unnecessary or excessive in relationship to the work done.” (Citation

omitted.) Miller v. Grimsley, 197 Ohio App.3d 167, 2011–Ohio–6049, 966

N.E.2d 932, ¶ 14 (10th Dist.). Then the court may modify the lodestar by

applying the factors listed in Prof.Cond.R. 1.5, Bittner at 145, one of which

is “the amount involved and the results obtained,” Prof.Cond.R. 1.5(a)(4).

Still, “ ‘[a] “reasonable” fee must be related to the work reasonably

expended on the case and not merely to the amount of the judgment

awarded.’ ” Miller at ¶ 16, quoting Roth Produce Co. v. Scartz, 10th Dist.

Franklin No. 01AP–480, 2001 WL 1654555 (Dec. 27, 2001).

Spring Hill Townhomes v. Pounds, 2d Dist. Montgomery No. 25887, 2014-Ohio-1980,

¶ 18.

{¶ 162} We initially note that Perrucci stipulated to Huffman’s qualifications as an

expert witness at the hearing on attorney fees. We note that the trial court found that

Huffman “is an experienced trial attorney, held in high regard by this Court.” As the trial

court further noted in overruling Perrucci’s objections, Perrucci “brought this claim and is

in large part responsible for the length of time it took to resolve. Failing to award the

defending party attorney’s fees, as it was an hourly fee agreement, would diminish her

recovery.”

{¶ 163} Zweizig testified that Exhibit AA was a true and accurate billing statement.

Huffman testified that he has experience with construction litigation and the CSPA. He

testified that the number of hours expended as reflected in Exhibit AA was reasonable,

and that none of the work was excessive or redundant. Huffman stated that Zweizig’s

costs and expenses were also reasonable, and that his hourly rates over the years were
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fair and reasonable and within the accepted standards of this market. Huffman testified

that pursuing Whittington’s CSPA claim necessarily overlapped with defending Perrucci’s

contract claim. Huffman expressed his opinion to a reasonable probability, and Perrucci

presented no evidence to the contrary. We have reviewed Exhibit AA and find it to be very

detailed. That the CSPA is not expressly mentioned in Exhibit AA does not diminish

Huffman’s opinion; multiple entries provide that Zweizig reviewed documents,

corresponded with his client, prepared documents, prepared for trial, etc., and naturally a

percentage of that work involves the CSPA. Huffman, as a stipulated expert, has the

expertise to determine that percentage. As did the trial court, we conclude that his opinion

that 80 percent of the total billings is related to the CSPA is reasonable. Accordingly,

Perrucci’s sixth assignment of error is overruled.

{¶ 164} Having overruled all of Perrucci’s assigned errors, the judgment of the trial

court is affirmed.

............

WELBAUM, P.J. and FROELICH, J., concur.

Copies mailed to:

Robert Kehoe
Jonathan Zweizig
Hon. Elizabeth S. Gutmann