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Mike Castrucci Ford Sales, Inc. v. Hoover

Court of Appeals of Ohio, Twelfth District

March 24, 2008

MIKE CASTRUCCI FORD SALES, INC., Plaintiff-Appellee,
v.
GEORGE W. HOOVER, Defendant-Appellant.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2005 CVH 00501

Taft Stettinius & Hollister, LLP, Timothy C. Sullivan, for plaintiff-appellee.

Cors & Bassett, LLC, Kevin R. Feazell, for defendant-appellant.

OPINION

POWELL, J.

{¶1} Appellant, George Hoover, appeals a decision of the Clermont County Court of Common Pleas awarding him $25, 000 plus interest and denying his request for attorney's fees.

{¶2} On January 11, 2005, appellant entered into a contract with appellee, Mike Castrucci Ford Sales, Inc., for the purchase of a 2005 Ford GT for the purchase price of $212, 500. A deposit was tendered by appellant in the amount of $25, 000. On March 29, 2005, some eleven weeks later, appellant had not received the vehicle. Appellant contacted appellee and requested the return of his deposit. On April 4, 2005, appellant sent a written demand for the return of his deposit. On April 6, 2005, appellee filed suit against appellant in the Clermont County Court of Common Pleas alleging breach of contract and anticipatory repudiation of the contract. Appellant answered on May 5, 2005, and filed a counterclaim alleging violations of the Ohio Consumer Sales Protection Act (CSPA) and requesting compensatory and treble damages in the amount of $75, 000. Appellee sent appellant a check in the amount of $25, 000 on May 24, 2005, nearly three weeks after appellant submitted his answer and counterclaim. Appellant construed the check as a settlement offer and returned the check to appellee. Appellee thereafter deposited the check into an escrow account with the trial court pending resolution of the claims.

{¶3} The trial court determined that appellee had violated the CSPA and that appellant was entitled to remedies under that statute. However, the court determined that appellant had elected the remedy of rescission and was therefore entitled only to the return of his deposit plus interest. Because appellee had tendered the deposit to appellant prior to the court's decision and entry, and because the court determined that appellant was not entitled to the compensatory and treble damages he had requested, the trial court denied appellant's request for attorney's fees. This appeal follows, wherein appellant raises two assignments of error.

{¶4} Appellant's first assignment of error argues:

{¶5} "THE TRIAL COURT ERRED IN FINDING THAT MR. HOOVER IRREVOCABLY ELECTED THE REMEDY OF RESCISSION BY REQUESTING THE RETURN OF HIS DEPOSIT."

{¶6} Appellant's counterclaim alleged a violation of the CSPA. Specifically, he alleges that appellee refused to return his deposit of $25, 000 where delivery had not occurred some eleven weeks after the contract for sale was negotiated. The trial court determined that this was a violation of Ohio Adm.Code 109:4-3-09(A), which states,

{¶7} "It shall be a deceptive act or practice in connection with a consumer transaction for a supplier:

{¶8} "* * *

{¶9} "(2) To accept money from a consumer for goods or services ordered by mail, telephone, or otherwise and then permit eight ...


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