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Dennie v. Hurst Construction

December 8, 2008

EMILY DENNIE, ET AL. APPELLANTS
v.
HURST CONSTRUCTION, INC., ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 04 CV 138659.

The opinion of the court was delivered by: Carr, Presiding Judge.

DECISION AND JOURNAL ENTRY

{¶1} Appellants, Emily and Mark Dennie ("Dennies") and Jeanette McClincey ("McClincey"), appeal the judgment of the Lorain County Court of Common Pleas which entered a directed verdict dismissing one of their claims, judgment against them as to their remaining claims, and against them on Appellee's, Hurst Construction, Inc. ("Hurst"), counterclaim.

I.

{¶2} In August of 2002, Appellants entered into a verbal agreement with Accutech Designs, Ltd. ("Accutech"), to compose floor plans for the renovation and addition to a home located at 3871 Stoney Ridge Rd. in Avon, Ohio. In December of 2002, upon Accutech's referral, Appellants entered into a contract with Hurst to construct an addition based on the floor plans provided by Accutech. In November of 2003, Appellants signed a Certificate of Substantial Completion, and moved into the home on November 30, 2003.

{¶3} On June 8, 2004, Appellants filed a complaint naming Accutech and Hurst as defendants stemming from problems that ensued from the home renovation. On June 9, 2004, Appellants filed an amended complaint. On August 30, 2004, Hurst filed a counterclaim against Appellants for breach of contract. Prior to trial, Appellants and Accutech reached an agreement, and Accutech was dismissed from the action with prejudice.

{¶4} On October 3, 2006, the jury trial began. After opening statement, Hurst moved for "a directed verdict in favor of the Defendant as it relates to the cause of action for the Ohio Consumer Sales Practice Act." The trial court denied the motion. On the third day of trial, after Appellants rested, Hurst again moved for a directed verdict on the Consumer Sales Practices Act ("CSPA") causes of action. The trial judge granted the motion the same day. On October 10, 2006, the jury returned a verdict "in favor of Defendant, Hurst Construction, and against Plaintiffs on the counterclaim for breach of contract and award compensatory damages in the amount of $1120.00." Appellants timely appeal, setting forth four assignments of error for review.

II.

ASSIGNMENT OF ERROR I

"THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFFS WHEN IT DISMISSED PLAINTIFFS' CAUSES OF ACTION UNDER THE CONSUMER SALES PRACTICES ACT."

{¶5} Appellants argue that the trial court erred in granting Hurst's motion for a directed verdict as to their claims under R.C. Chapter 1345, otherwise known as the CSPA. This Court agrees.

{¶6} "An appellate court reviews a trial court's ruling on a motion for a directed verdict de novo, as it presents an appellate court with a question of law." Jarvis v. Stone, 9th Dist. No. 23904, 2008-Ohio-3313, at ¶7.

{¶7} The standard for granting a directed verdict is well established, and is found in Civ. R. 50(A)(4) which provides:

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

Furthermore, when deciding such a motion, the trial court is not to consider either the weight of the evidence or credibility of witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. "Instead, '[w]hen a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to the jury.'" Carter v. Cleveland (1998), 83 Ohio St.3d 24, 33, quoting Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68. Finally, "if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion [for a directed verdict] must be denied." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115.

{¶8} "The general provisions of the [CSPA] prohibit unfair, deceptive, or unconscionable acts or practices in consumer transactions. R.C. 1345.02; R.C. 1345.03." Gugliotta v. Morano, 161 Ohio App.3d 152, 2005-Ohio-2570, at ¶33. Furthermore, "[c]onsumer transactions are defined as '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.'" Id., quoting 1345.01(A). ...


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