McNichols v. Gouge Quality Roofing, L.L.C.

[Cite as McNichols v. Gouge Quality Roofing, L.L.C., 2022-Ohio-3294.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY

CLOYD MCNICHOLS, et al., : Case No. 21CA15
:
Plaintiffs-Appellants, :
v. : DECISION AND JUDGMENT
: ENTRY
GOUGE QUALITY ROOFING, :
LLC. :
Defendant-Appellee.

APPEARANCES:

Robert R. Goldstein, Columbus, Ohio, for Appellants.

Brian S. Stewart, The Law Office of Brian Stewart, LLC, Circleville, Ohio, for
Appellee Gouge Quality Roofing, LLC, for Appellee.
________________________________________________________________

Smith, P.J.

{¶1} Cloyd McNichols and Judith McNichols, “Appellants,” appeal the

Decision and Entry of the Circleville Municipal Court entered August 26, 2021.

Appellants challenge the trial court’s application of the Ohio Consumer Sales

Practices Act to the facts of the underlying case, along with the trial court’s

decision which declined to award treble damages and attorney fees in the

underlying matter. However, having engaged in a full review of the record, we

find the trial court did not err. Therefore, we find Appellants’ assignments of error
Pickaway App. No. 21CA15 2

to be without merit and they are hereby overruled. The judgment of the trial court

is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} The following facts are gleaned from the testimony given at the parties’

bench trial. In May 2018, Appellants entered a contract with Caleb Gouge for a

metal roof installation project on Appellants’ residential property, a 100-year-old

house located on Hayesville Road in Pickaway County. Defendant-Appellee

(hereinafter “Appellee”) is Gouge Quality Roofing, LLC. The roofing business is

owned and managed by Caleb Gouge.

{¶3} Prior to entering the contract, Caleb Gouge prepared two estimates for

Appellants. One estimate was for a “hidden fastener system” which would cost

$22,450.00, and which would utilize a heavier type of metal. The other estimate

provided for a 28-gauge “exposed fastener system” at a lesser cost of $15,850.00.

Appellants chose to have an exposed fastener system installed.

{¶4} The roofing job commenced in July 2018. Caleb Gouge later learned

that Appellants were unhappy with the roofing installation. Mr. Gouge returned to

the job site, discussed the issues with Appellants, and offered to perform additional

roof repairs. However, before additional repairs occurred, Appellants filed suit in
Pickaway App. No. 21CA15 3

April 2019 with the filing of a complaint against Appellee and Caleb Gouge in the

Circleville Municipal Court, small claims division.

{¶5} The matter was eventually transferred to the general civil division, and

Appellants filed an amended complaint.1 Appellants alleged a violation of the

Ohio Consumer Sales Practices Act (OCSPA), breach of contract, negligence,

breach of implied warranty, and breach of express warranty. The matter eventually

proceeded to a two-day bench trial in August 2020 before a magistrate. Three

witnesses gave lengthy testimony.

{¶6} Appellants first presented the testimony of Karen Chumley, the owner

of Expert Roofing and Remodeling LLC. She testified she had been in the roofing

business since 2009 and had owned her own company since 2018. Her training has

consisted of observing the work of roofing installers who explained the installation

of different types of roofs to her. The Magistrate qualified Ms. Chumley as an

expert witness in roofing.

{¶7} Ms. Chumley testified she fully inspected Appellants’ roof damage in

April 2019. She identified various photographic exhibits. She testified metal was

bent or missing; flashing was incorrect in many areas; a chimney was absolutely

destroyed; and open pipes were showing. She did not think Gouge’s roof

installation was done to specification, met industry standards, or was done in a

1
Mr. Gouge was dismissed by agreement of the parties.
Pickaway App. No. 21CA15 4

workmanlike manner. She described it as the “sloppiest” work she had ever seen.

Ms. Chumley gave Appellants an estimate for repair in the amount of $6,116.99.

The estimate was actually prepared by her employee who entered the pertinent

information into a computer program, Xactimate.

{¶8} On cross-examination, Ms. Chumley admitted that she has not

personally installed roofs. Her company does not have any certifications from

roofing companies or manufacturers. She was also unable to identify the location

of the damage on many of the photographs of the roof.

{¶9} Appellant Cloyd McNichols testified he heard that Gouge was a good

roofing company so he contacted Caleb Gouge. The roof was installed on July 3,

2018. The job took two days. Within a week of the job, Mr. McNichols noticed

problems and took photographs. Mr. McNichols discussed the following issues he

immediately noticed: dormer filled in with silicone; flashing incorrectly done;

heavy damage on right side of dormer; cracked vinyl; metal screws put into vinyl

siding; metal pieces incorrect; crooked chimneys; water leaks on front and back

porches; debris left behind in attic.

{¶10} On cross-examination, Mr. McNichols admitted he does not perform

residential building construction. He admitted the home was 100 years old. He

admitted he chose the cheaper version which was an exposed fastener system. He
Pickaway App. No. 21CA15 5

also testified Ms. Chumley, her employee, and he had walked on the roof after

Gouge completed the job.

{¶11} On redirect, Mr. McNichols testified just because he chose a lower

cost estimate did not mean he expected lower quality. He testified the roof damage

was visible before he stepped onto it. Also, he testified, no one discussed the

difference between metals with him.

{¶12} Caleb Gouge testified he has worked in construction and roofing over

20 years. Gouge Quality Roofing, LLC has been in business 16 years. His

company performs both residential and commercial roofing jobs. He has done

roughly 250-300 jobs a year.

{¶13} Mr. Gouge testified he has been hands-on when installing roofs until

three years ago. He and his employees are certified on every product they install.

“Certification” means they go to plants, do hands-on training, install mock roofs,

and are trained by certified installers. The trial court designated Mr. Gouge an

expert in roofing contracting.

{¶14} Mr. Gouge testified that the price difference in the two estimates is

that the more expensive estimate is for a hidden fastener system using heavier

metal with no visible screws. He described it as a “lifetime product.” Mr. Gouge

testified the estimate for a cheaper option was for an exposed fastener system using

a cheaper metal. Also, the screws in the metal were visible. Mr. Gouge testified
Pickaway App. No. 21CA15 6

there was nothing on the estimate Appellants chose that Gouge did not install. In

his opinion, Appellants’ roof job turned out really well.

{¶15} Mr. Gouge testified he had complaints from Appellants within about a

week after installation. He went back and found nothing functionally wrong with

the chimneys or the roof. He thought Appellants’ complaints were mostly

aesthetic. Mr. Gouge did not get complaints about leaks and he did not observe

any. In his years of experience, leaks were more often caused by siding and

windows, not roofing. As to the dents in the roof, Mr. Gouge testified that with

thinner metal, someone walking across the roof could dent it. There is a certain

way people have to be shown how to walk on the roof.

{¶16} The only issue on which Mr. Gouge agreed with Appellants was the

chimney work. He testified that he does his best to give his customers the correct

expectations. All houses have “settling,” which may affect the decking on which a

roof is attached. He testified all trash and debris was hauled away at the end of the

job. Mr. Gouge disagreed with the accuracy of the estimate prepared by

Chumley’s company.

{¶17} On October 23, 2020, the Magistrate’s Decision was entered. The

Magistrate found that Appellants failed to prove violations of the Ohio Consumer

Sales Practices Act (OCSPA) by a preponderance of evidence, as alleged in the

first cause of action in the amended complaint. The Magistrate also found no merit
Pickaway App. No. 21CA15 7

to the fifth cause of action (breach of express warranty) in the amended complaint.

However, the Magistrate found that Appellants had proven their claims for breach

of contract, negligence, and breach of an implied warranty by a preponderance of

the evidence due to the failure to install the roof in a workmanlike manner (as

alleged in the second, third, and fourth causes of action). Specifically, the

Magistrate found that Appellants were entitled to damages due to the following

deficiencies caused by faulty installation of the roof:

1) Transition flashing.

2) Damaged vinyl trim.

3) Damaged fascia.

{¶18} The Magistrate also found Appellants did not prove by a

preponderance of the evidence that roof leaks and issues with chimneys were

caused by Appellee. The Magistrate awarded damages in the amount of $1,603.66

to correct the negligent work.

{¶19} Appellants filed an Objection to the Magistrate’s Decision.

Appellants asserted that the Magistrate should have found violations of the OCSPA

and should have awarded associated treble damages and attorney fees. Appellants

also asserted the manifest weight of the evidence supported a damage award

related to the allegation that Appellee failed to properly re-install a chimney and

remove debris.
Pickaway App. No. 21CA15 8

{¶20} On August 26, 2021, the trial court agreed in its Decision and Entry as

to the Magistrate’s determination that the installation of the roof was deficient in

three aspects. However, the trial court also found that damages with regard to the

chimney work should be added to the total award. The trial court disagreed with

and declined to order additional damages based on Appellants’ assertion that the

findings of negligence and breach of contract necessarily included a finding of

violation of the OCSPA. Based on its review, the trial court awarded additional

damages for the negligent chimney work. The court also awarded $200.00 for

Appellant’s technical violation of the OCSPA for failure to provide an itemized list

distinguishing charges for materials and charges for labor. The total damage award

was then determined to be $2,232.86.

{¶21} This timely appeal followed. Additional pertinent facts will be

included below.

ASSIGNMENTS OF ERROR

I. THE COURT ERRED IN DECLINING TO ORDER
TREBLE DAMAGES AND ATTORNEY FEES BASED
ON A FINDING THAT A CONTRACTOR IS ABLE TO
ENGAGE IN CONDUCT DETERMINED TO BE
NEGLIGENT AND/OR WHICH RESULTS IN A
BREACH OF CONTRACT WITHOUT NECESSARILY
COMMITTING UNFAIR OR DECEPTIVE ACTS OR
PRACTICES AS SET FORTH IN R.C. 1345.02 OR
UNCONSCIONABLE ACTS OR PRACTICES SET
FORTH IN R.C. 1345.03.
Pickaway App. No. 21CA15 9

II. THE COURT ERRED IN NOT CONSIDERING
ATTORNEY FEES, AFTER MAKING A RULING
THAT THE CONSUMER SALES PRACTICES ACT
HAD BEEN VIOLATED BY THE FAILURE OF
DEFENDANT TO PROVIDE A WRITTEN
BREAKDOWN OF AMOUNTS CHARGED FOR
SUPPLIES AND LABOR.

A. STANDARD OF REVIEW

{¶22} When a party files timely objections to a magistrate's decision, the

trial court must independently review the objections to determine whether the

magistrate properly determined the factual issues and appropriately applied the

law. Civ.R. 53(D)(4)(d). See Woody v. Woody, 4th Dist. Athens No. 09CA34,

2010-Ohio-6049, at ¶ 19. Under this de novo standard of review, the trial court

may not merely “rubber stamp” the magistrate's decision. Knauer v. Keener, 143

Ohio App.3d 789, 793, 758 N.E.2d 1234 (2001); Roach v. Roach, 79 Ohio App.3d

194, 207, 607 N.E.2d 35 (1992). “Thus, ‘[t]he trial court should not adopt

challenged [magistrate's] findings of fact unless the trial court fully agrees with

them—that is, the trial court, in weighing the evidence itself and fully substituting

its judgment for that of the [magistrate], independently reaches the same

conclusion.’ ” McCarty v. Hayner, 4th Dist. Jackson No. 08CA8, 2009-Ohio-4540,

at ¶ 17, quoting DeSantis v. Soller, 70 Ohio App.3d 226, 233, 590 N.E.2d 886

(1990).
Pickaway App. No. 21CA15 10

{¶23} Upon review, the trial court may adopt or reject the magistrate's

decision in whole or in part and with or without modification. See Civ.R.

53(D)(4)(b). The court also may hear a previously-referred matter, take additional

evidence, or return the matter to the magistrate. Id. Here, the trial court reviewed

the magistrate’s decision, affirmed parts of the magistrate’s decision, and modified

the decision by also finding Appellants were entitled to damages for Appellee’s

faulty work on the chimneys.

{¶24} An appellate court generally reviews a trial court's judgment under the

manifest-weight-of-the-evidence standard. Woody, supra, at ¶ 17. We will not

reverse a trial court's judgment in a civil action unless it is against the manifest

weight of the evidence. A trial court's judgment is not against the manifest weight

of the evidence so long as some competent and credible evidence supports it. See

e.g. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d

578, (1978), syllabus. In determining whether a trial court's judgment is against

the manifest weight of the evidence, a reviewing court must not re-weigh the

evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 79-80, 461 N.E.2d

1273 (1984). Under this highly deferential standard of review, we do not decide

whether we would have come to the same conclusion as the trial court. Amsbary v.

Brumfield, 177 Ohio App.3d 121, 2008-Ohio-3183, 894 N.E.2d 71, at ¶ 11.

Instead, we must uphold the judgment so long as the record contains “some
Pickaway App. No. 21CA15 11

evidence from which the trier of fact could have reached its ultimate factual

conclusions.” Id., citing Bugg v. Fancher, 4th Dist. Highland No. 06CA12, 2007-

Ohio-2019, at ¶ 9. Moreover, we presume the trial court's findings are correct

because the trial court is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections and to use those observations in

weighing the credibility of the testimony. See, e.g., Seasons Coal, 10 Ohio St.3d at

80, 461 N.E.2d 1273; Jones v. Jones, 4th Dist. Athens No. 07CA25, 2008-Ohio-

2476, at ¶ 18. This means that the trier of fact is free to believe all, part, or none of

the testimony of any witness who appears before it. Rogers v. Hill, 124 Ohio

App.3d 468, 470, 706 N.E.2d 438 (1998); Stewart v. B.F. Goodrich Co., 89 Ohio

App.3d 35, 42, 623 N.E.2d 591 (1993). Furthermore, an appellate court should not

substitute its judgment for that of the trial court when the record contains

competent, credible evidence going to all of the essential elements of the case.

Seasons Coal, supra. However, to the extent that the judgment involves a question

of law, we review the question of law independently and without any deference.

See Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, at

¶ 10.2

LEGAL ANALYSIS

2
See also Coliadis v. Holko Enercon, Inc., 2016-Ohio-8522, 78 N.E.3d 1257, at ¶¶ 29-33, (11th Dist.), J. Rice
Concurring in Judgment Only with Concurring Opinion, citing our decision in Woody, and explaining that because
the determination of whether defendant Holko breached the contract was a mixed question of law and fact, applying
the hybrid standard of review was required.
Pickaway App. No. 21CA15 12

Assignment of Error One

{¶25} Appellants’ first assignment of error challenges the trial court’s

failure to properly apply the OCSPA and the failure to award treble damages. The

application of the OCSPA to the facts presents us with questions of law. We

review legal determinations de novo without any deference to the trial court. See

Snyder v. Watkins, 4th Dist. Athens No. 08CA3006, 2008-Ohio-4909, at ¶ 10;

Snyder v. Southeastern Local S.D., 171 Ohio App.3d 544, 871 N.E.2d 1250, 2007-

Ohio-453 at ¶ 9 (4th Dist.); Woods v. Oak Hill Community Med. Ctr., 134 Ohio

App.3d 261, 267, 730 N.E.2d 1037 (4th Dist.1999); Shockey v. Fouty, 106 Ohio

App.3d 420, 424, 666 N.E.2d 304, 306 (4th Dist.1995).

{¶26} In the appealed-from Decision and Entry, the trial court agreed with

the Magistrate’s findings that the roof was installed in an unworkmanlike manner

and Appellants had proven their cause of action for breach of contract. Under the

first assignment of error, Appellants direct us to case law which provides that the

failure to perform services in a competent, satisfactory manner has been found to

violate the OSCPA, see State ex rel Celebreeze v. Goldstein, American Builder and

Supply Co., Fairfield C.P. No. 53110, (P.I.F. 3196) (1983), and that a knowing

breach of contract is a violation of the OSCPA, see e.g. Brown v. Spears, Franklin

M.C. No. 8897, 1997 WL 52451 (Aug. 20, 1979). Based on the foregoing,

Appellants conclude they are generally entitled to treble damages under the
Pickaway App. No. 21CA15 13

OSCPA. For the following reasons, however, we are not persuaded that the trial

court erred by finding that negligent or breaching conduct does not necessarily

constitute a deceptive or unconscionable act and denying the Appellants a treble

damages award in this matter.

{¶27} “ ‘The Ohio Consumer Sales Practices Act, set forth in R.C. Chapter

1345, 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.” ’ ” Green

Maple, at ¶ 16, quoting Fink v. Daimler Chrysler Motors Corp., 7th Dist.

Mahoning No. 03-MA-155, 2004-Ohio-5125, at ¶ 12, quoting Einhorn v. Ford

Motor Co., 48 Ohio St.3d 27, 548 N.E.2d 933 (1990). The OCSPA prohibits

suppliers from engaging in two types of practices. Relevant here, R.C. 1345.02

prohibits suppliers from engaging in “unfair or deceptive” acts.3 “[T]he OCSPA

defines ‘unfair or deceptive consumer sales practices’ as those that mislead

consumers about the nature of the product they are receiving * * *.” Green Maple,

supra, quoting Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985,

834 N.E.2d 791, ¶ 24.

{¶28} R.C. 1345.02(B) provides a non-exhaustive list of practices that are

considered unfair or deceptive. See Green Maple, ¶ 17; Great v. Giant Eagle, Inc.,

3
R.C. 1345.03 prohibits suppliers from engaging in “unconscionable” acts and also provides a non-exhaustive list of
practices considered unconscionable.
Pickaway App. No. 21CA15 14

2019-Ohio-4582, 135 N.E.3d 846, ¶ 13 (8th Dist.). “ ‘ “Proof of intent is not

required to prove a deceptive act under R.C. 1345.02.” ’ ” See Green Maple,

supra, at ¶ 18, quoting Hamilton v. Ball, 2014-Ohio-1118, 7 N.E.3d 1241, ¶ 38

(4th Dist.), quoting Garber v. STS Concrete Co., 2013-Ohio-2700, 991 N.E.2d

1225 (8th Dist.). Whether an act is deceptive depends on how the consumer

viewed the supplier's act or statement. Tsirikos-Karapanos v. Ford Motor Co.,

2017-Ohio-8487, 99 N.E.3d 1203, (8th Dist.) (Internal citations omitted.). And,

while not every contract breach constitutes an OCSPA violation, “when a supplier

knowingly commits a breach, the breach is likely also an unfair or deceptive act.”

Cartwright v. Beverly Hills Floors, Inc., 7th Dist. Mahoning No. 11 MA 109,

2013-Ohio-2266.

{¶29} Relative to unfair, deceptive, or unconscionable conduct, R.C.

1345.09(B) provides for an award of treble damages to prevailing plaintiffs as

follows:

(B) Where the violation was an act or practice declared to be
deceptive or unconscionable by rule adopted under division
(B)(2) of section 1345.05 of the Revised Code before the
consumer transaction on which the action is based, or an act or
practice determined by a court of this state to violate section
1345.02, 1345.03, or 1345.031 of the Revised Code and
committed after the decision containing the determination has
been made available for public inspection under division (A)(3)
of section 1345.05 of the Revised Code, the consumer may
rescind the transaction or recover * * * three times the amount of
the consumer's actual economic damages or two hundred dollars,
Pickaway App. No. 21CA15 15

whichever is greater, plus an amount not exceeding five thousand
dollars in noneconomic damages * * *. (Emphasis added.)

{¶30} “ ‘ Treble damages under the OCSPA are punitive in nature,

“intended to deter a seller from wrongful conduct.” ’ ” Green Maple, supra, at

¶ 33, quoting Averback, supra, quoting Reagans v. Mountain High Coachworks,

Inc., 117 Ohio St.3d 22, 2008-Ohio-271, 881 N.E.2d 245, ¶ 34. An appellate court

reviews awards of treble damages de novo because determining “ ‘ “whether treble

damages are appropriate is a question of law.” ’ ” Green Maple, supra at ¶ 31,

quoting, Averback v. Montrose Ford, Inc., 2019-Ohio-373, 120 N.E.3d 125 ¶ 35

(9th Dist.), quoting Fleischer v. George, 9th Dist. Medina No. 09CA0057-M,

2010-Ohio-3941, at ¶ 18.

{¶31} In addition to the OCSPA statutes, two other sources can determine

what constitutes an OCSPA violation: (1) rules adopted by the Ohio Attorney

General and found in the Ohio Administrative Code, and (2) court rulings. See

R.C. 1345.05(B)(2) and (F); Frey v. Vin Devers, Inc., 80 Ohio App.3d 1, 6, 608

N.E.2d 796 (6th Dist.1992). The Ohio Attorney General makes judgments and

supporting opinions available for public inspection via its Public Inspection File on

its website: https://opif.ohioattorneygeneral.gov. This allows consumers,

suppliers and lawyers to keep informed of judgments, rights, and duties under the

OCSPA. Frank v. WNB Group, LLC., 2019-Ohio-1687, 135 N.E.3d 1142, ¶ 17

(1st Dist.). The lack of a prior administrative or court decision does not bar a court
Pickaway App. No. 21CA15 16

from determining that conduct is unfair, deceptive, or unconscionable based upon

the evidence before it. Id. at ¶ 19, citing Hamilton v. Ball, 2014-Ohio-1118, 7

N.E.3d 1241, ¶ 36 (4th Dist.).

{¶32} In Nelson v Pieratt, 12th Dist. Clermont No. CA2011-02-011, 2012-

Ohio-2568, the appellate court more concisely explained the prerequisites for an

award of treble damages at ¶ 9:

In other words, for treble damages to be awarded under R.C.
1345.09(B), (1) the act or practice must have been declared to be
deceptive or unconscionable by a regulation promulgated by the
Attorney General, or (2) an Ohio court must have previously
determined that the act or practice violated R.C. 1345.02,
1345.03, or 1345.031 and that court decision must have been
made available for public inspection. White v. Hornbeck, 9th
Dist. No. 01 CA0057, 2002–Ohio–3037, ¶ 8.

We find the Nelson opinion to be instructive.

{¶33} The Nelsons brought an action against a home builder for

breach of contract, negligence, and violations of the OCSPA. Following a jury

trial, the court entered judgment in favor of plaintiffs on the claims for breach of

contract and for violations of the OCSPA. However, the Nelsons’ request for

treble damages was denied. On appeal, the Nelsons argued their entitlement to

treble damages based on the jury’s findings, which included a finding that a breach

of contract had occurred. However, the appellate court disagreed, noting at ¶ 12:

Although there have been circumstances where a breach of
contract or a breach of warranty has constituted a violation of the
OCSPA, not every such breach will constitute an OCSPA
Pickaway App. No. 21CA15 17

violation. Indeed, a breach of contract is not necessarily rooted
in a deceptive act pursuant to R.C. 1345.02. Wasserman v. Home
Corp., 8th Dist. No. 90915, 2008-Ohio-5477, ¶ 13. Obviously, a
contract can be breached in myriad ways that do not involve
deception. Toth v. Spitzer, 2nd Dist. No. 17178, 1998 WL
879475, *2 (Dec. 18, 1998).

***

Despite its clearly pro-consumer stance, the [OCSPA] was not
intended to encompass all aspects or breaches of consumer sales
agreements[.] Lump v. Best Door and Window, Inc., 3d Dist. No.
8-01-09, 2002 WL 462863, *9 (Mar. 27, 2002) (Walters, J.,
concurring). The mere fact that a party has breached a contract
or violated a warranty does not give rise to a[n] [O]CSPA claim
in the absence of indicia of unfair or deceptive practices
associated therewith. Id. at *11 (Walters, J., concurring).

{¶34} The Nelson court also distinguished holdings in other Ohio courts,

noting that other cited cases wherein a breach of contract was also determined to

be a violation of the OCSPA were all specifically premised on a finding that the

breach of contract was knowing. (Emphasis added.) Id. at ¶ 14 (Internal citations

omitted). For example, in Brown v. Spears, Franklin M.C. No. 8897, 1979 WL

52451 (Aug. 20, 1979), the trier of fact specifically found that the intentional

breach of a contract constituted an unfair or deceptive act in violation of the

OCSPA. By contrast, in Nelson, the jury never found that Pieratt, the homebuilder,
Pickaway App. No. 21CA15 18

knowingly breached the contract. The jury also made no finding that Pieratt’s

breach was an unfair or deceptive act in violation of the OCSPA.4

{¶35} The appellate court also observed that the Nelsons did not file a

transcript of the jury trial so the appellate court had no way of determining on what

grounds the jury made a finding of breach or whether the breach and the OCSPA

violations were related. Therefore, the appellate court in Nelson concluded that

plaintiffs were not entitled to treble damages despite the finding of breach of

contract.

{¶36} The reasoning set forth in Nelson is somewhat applicable herein.

Neither the Magistrate’s Decision nor the Decision and Entry of the trial court

found any intentional or knowing breach of contract by Caleb Gouge on behalf of

his company. Fortunately, we do have a transcript of the bench trial.

{¶37} To briefly summarize, Appellant testified that he did not think that the

terms of the contract were misrepresented to him at the time the contract was

signed. He testified he understood the contract. Mr. Gouge testified that Appellee

performed all the terms of the contract and there was nothing in the estimate that

Appellee did not install. Based on the evidence before the trial court, we cannot

4
The jury did make specific findings that Pieratt had engaged in several violations of the OCSPA and that among
those, several violations were committed knowingly.
Pickaway App. No. 21CA15 19

say there is evidence that Appellee’s breach was intentional, knowing, or “rooted

in deception.”

{¶38} Furthermore, as indicated, Appellants have also directed us to

Goldstein, supra, wherein the trial court found that failure to perform home

improvement services in a workmanlike manner and then failing or refusing to

correct any substandard work or defect was a violation of the OCSPA. (Emphasis

added.) However, this argument is not persuasive in this matter, given Appellee’s

attempts to correct the issues Appellants complained of. Mr. Gouge testified that

although he was not required to return to Appellants’ property and make

corrections on the roofing job, he did so. Mr. McNichols’ testimony corroborated

this evidence. The Magistrate’s Decision also observed that Appellee attempted to

correct the work to satisfy Appellants and was still attempting to continue those

efforts when Appellants instructed Appellee not to return to the job site and

thereafter terminated the relationship.

{¶39} Appellants’ argument that the trial court’s finding that conduct

determined to be negligent or in breach of contract does not necessarily constitute

unfair, deceptive, or unconscionable practices is contrary to Ohio law is without

merit. The evidence presented at the bench trial does not support a finding that

Appellee’s breach of contract also warrants a finding that the breach constituted a

violation of the OCSPA. Consequently, the trial court did not err in declining to
Pickaway App. No. 21CA15 20

award treble damages to Appellants. As such, we find no merit to the arguments

contained in Appellants’ first assignment of error. It is hereby overruled.

Assignment of Error Two

{¶40} The OCSPA provides for the award of reasonable attorney fees to the

prevailing party in an action brought under the OCSPA if the supplier has

knowingly committed an act or practice that violates R.C. Chapter 1345. R.C.

1345.09(F) explicitly provides that a trial court “may” award attorney fees to a

prevailing consumer if “the supplier has knowingly committed an act or practice

that violates the OCSPA.” R.C. 1345.09(F)(2). OAC 109-4-3-05(D)(12) provides

that in any consumer transaction involving the performance of any repair or service

it shall be a deceptive act or practice for a supplier to:

Fail to provide the consumer with a written itemized list of
repairs performed or services rendered, including a list of parts
or materials * * * and the cost thereof to the consumer, the
amount charged for labor * * *.

{¶41} At trial, Appellant identified invoices for his attorney’s legal fees,

billed at $250.00 an hour. He testified the bill did not include the time spent in

trial. Appellant also testified he was satisfied with his attorney’s work. He

admitted that he thought hiring an attorney was “reasonable and necessary” once

the case was transferred to the regular civil division. He indicated he thought he

had “no choice” but to obtain professional legal representation.

{¶42} In the Decision and Entry, the trial court wrote:
Pickaway App. No. 21CA15 21

It is undisputed that Defendant failed to provide to Plaintiffs a
written breakdown of amounts charged for supplies and labor,
thus engaging in a deceptive act or practice under OAC 109:4-3-
05(D)(12). R.C. 1345.09(B) provides that when a deceptive or
unconscionable act or practice occurs, a consumer is entitled to
recover three times the amount of the consumer’s actual
economic damages or two hundred dollars, whichever is greater.
As there was no testimony presented about actual economic
damage attached to Defendant’s failure to provide a proper
written estimate, Plaintiffs are entitled to recover the amount of
$200.00 for that violation.5

{¶43} Appellants argue that they were entitled to attorney fees in this matter

and the trial court did not consider them. For the reasons which follow, we

disagree.

{¶44} This Court's standard of review on a trial court's decision to award

attorney fees under the OCSPA is abuse of discretion. See Green Maple, supra, at

¶ 81, quoting Cartwright v. Beverly Hills Floors, Inc., 7th Dist. Mahoning No.11

MA 109, 2013-Ohio-2266, at ¶ 41. To award attorney fees under the OCSPA, the

court must also “find that the supplier acted ‘knowingly’ in committing the

deceptive/unconscionable act or practice.” Cartwright at ¶ 41, citing R.C.

5
In its brief, Appellee asserts that the Judge’s decision did err by finding technical liability under the OCSPA.
Appellee directs our attention to the Magistrate’s Decision which held that “the evidence showed that Defendant
provided two alternative estimates to Plaintiffs---and that such were in substantial compliance with the requirements
of this provision of the Ohio Administrative Code. Further if there were any deficiencies in the estimates provided
to Plaintiffs by Defendant, or in the contract or any other documentation involved in this transaction, the Court finds
that such were bona fide errors as set forth in R.C. 1345.11” Appellee asserts that the trial court’s decision erred by
making this finding of bona fide error. However, we decline to consider Appellee’s undeveloped argument.
Appellee did not file a cross-appeal. One must do so if seeking to modify a judgment in some way. Smith v. Smith,
7th Dist. Carroll No. 14CA0901, 2016-Ohio-3223. In the alternative, Appellee requests that we affirm the trial
court’s $200.00 award for a technical violation of the OCSPA. Our consideration of Appellant’s second assignment
of error does require that we consider the $200.00 award.
Pickaway App. No. 21CA15 22

1345.09(F)(2). “Knowledge” for purposes of the OCSPA “means awareness, but

such actual awareness may be inferred where objective manifestations indicate that

the individual involved acted with such awareness.” R.C. 1345.01(E). The Ohio

Supreme Court held that “knowingly” means “the supplier need only intentionally

do the act that violates the Consumer Sales Practices Act.” Averback v. Montrose

Ford, Inc., 2019-Ohio-373, 120 N.E.3d 125, ¶ 66 (9th Dist.), quoting Einhorn v.

Ford Motor Co., 48 Ohio St.3d 27, 30, 548 N.E.2d 933 (1990). However, the

knowing commission of an act that violates the OCSPA does not mandate a court

to impose attorney fees. Charvat v. Ryan, 116 Ohio St.3d 394, 2007-Ohio-6833,

879 N.E.2d 765, ¶ 27. The court still has the discretion to determine whether to do

so and whether it is warranted under the facts of the case. Id. And we are mindful

that R.C. 1345.09(F) provides that a trial court “may” award attorney fees as

opposed to “shall.”

{¶45} In this case, the trial court found a technical violation for failure to

provide a written breakdown for materials and labor. However, there was no

evidence the failure to provide the written breakdown was done with knowledge or

intent to deceive. Furthermore, there was no evidence of actual economic damage

due to the violation. The Magistrate and the trial court were aware of Appellants’

request for attorney fees.
Pickaway App. No. 21CA15 23

{¶46} In a bench trial, the trial court is presumed to apply the law correctly

and to act properly in considering the evidence. See In re. D.W., 1st Dist. Hamilton

Nos. C-180644 and C-180654, 2020-Ohio-2707, at ¶ 11; In re Watson, 47 Ohio

St.3d 86, 91, 548 N.E.2d 210 (1989). Without saying so, the trial court apparently

did not find attorney fees warranted under the facts of Appellants’ case. Given the

record, we do not find the trial court’s failure to award attorney fees in this matter

to be an unreasonable or arbitrary abuse of discretion. Accordingly, we overrule

the second assignment of error.

{¶47} Having found no merit to either of Appellants’ assignments of error,

we hereby affirm the judgment of the trial court.

JUDGMENT AFFIRMED.
Pickaway App. No. 21CA15 24

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Circleville Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.

Abele, J. and Hess, J. concur in Judgment and Opinion.

For the Court,

__________________________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.