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Robert E. Giffin [Et Al v. Stuart Cohen

October 27, 2011


APPEAL from the Franklin County Municipal Court (M.C. No. 2009 CVF 029120)

The opinion of the court was delivered by: Tyack, J.

Cite as Giffin v. Cohen,



{¶1} Plaintiffs-appellants, Robert E. Giffin ("Giffin"), and Robert G. Kennedy appeal the decisions of the Franklin County Municipal Court. For the following reasons, we affirm those decisions.

{¶2} Giffin assigns the following errors:

I. The Trial Court Erred in Failing to Find the Contract Between Appella[nt] and Appellee was Subject to the Consumer Sales Practice Act.

II. The Trial Court Erred in Failing to Find Appellee Violated the Requirements of R.C. 1345.23(A) as Being Part of the Home Solicitation Sales Act and the Ohio Administrative Code Adopted Thereunder, which Under R.C. 1345.28 is a Violation of R.C. 1345.02 of the Consumer Sales Practice Act and OAC 109:-4-3-11.

III. The Trial Court Erred in Failing to Award Appellant Triple Damages as Set Forth in R.C. § 1345.09(B) as Appellee Violated the Rule Adopted by the Ohio Attorney General under R.C. § 1345.05(B)(2), or the Appellee's Act Has Been Determined by a Court to Have Violated R.C. § 1345.02 or R.C. § 1345.03. A Copy of the Decision has been Made Available for Pubic Inspection by the Ohio Attorney General.

IV. The Trial Court Erred in Failure to Find Ohio Administrative Code 109:4-3-01 Definition of Services and Therefore Required Appellee to Provide a specific Written Form Informing of Appellant's Right to an Estimate for Additional Costs as Required by Ohio Administrative code 109:4-3-05.

V. The Trial Court Erred in Finding There were Oral Modifications to the Contract by the Appellant. The Trial Court failed to consider the effects of the Uniform Commercial Code Section 2-209 (R.C. 1302.12).

VI. The Trial Court Erred in Finding that Appellant and Appellant's Counsel Engaged in Frivolous Conduct Under R.C. 2323.51(A)(2)(A)(III-IV) in their Prosecution of this Matter.

Facts and Procedures of the Case

{¶3} This case arises from a contract dispute over a basement remodeling. Giffin contacted appellee Stuart Cohen ("Cohen") doing business as Buckeye Handyman Service in July 2008 and inquired about hiring Cohen to remodel the basement of his residence. Cohen presented Giffin with a written estimate and contract proposal for the remodeling project on July 28, 2008. Both parties negotiated and Giffin signed a revised contract proposal on August 22, 2008.

{¶4} The contract included the following language:

Price includes labor for entire job as listed above.

BHS [Buckeye Handyman Service] will provide all basic construction materials such as framing lumber, drywall, electrical wire, receptacles, switches, fasting devices and countertop steel bracing.

Customer will provide all other materials or reimburse Cohen for other materials purchased at customers [sic] request, including, but not limited to, cabinets, countertops, base moldings, casings, switch and outlet covers, recessed lights, baffles and trim rings.

(Defendant's exhibit No. 9.)

{¶5} The contract further states that "[a]ny deviation or alteration from above specifications will be executed only upon written orders and will become an extra charge above the original estimate." (Defendant's exhibit No. 9.)

{¶6} Within a few days of Giffin signing the contract, Cohen began the remodeling project, which he completed on December 10, 2008. During the course of the project, changes were made to the original estimate. These changes were necessitated by unforeseen circumstances or made at Giffin's request. These changes resulted in a total additional cost of $863. These additional costs were presented to Giffin in a revised version of the contract.

{¶7} On December 9, 2008, the day before completion of the project, Giffin presented Cohen a letter objecting to the additional costs. In the letter, Giffin stated: "As you know I did not sign any change order nor any other document authorizing the additional charges. There fore [sic] I do not feel I owe for the [additional] charges[.]" (Defendant's exhibit No. 23.)

{¶8} Upon completion of the project on December 10, 2010, Giffin added a notation at the bottom of the most recent version of the contract, which included a list of all the additional costs. The notation, which is positioned below the signature line, reads, "932.00 Bal. due on completion by 12/10/2008." (Defendant's exhibit No. 18.) Cohen and Giffin both signed the contract beneath this notation.

{¶9} Giffin then tendered a check for the full balance owed, but had typed on the back of the check, "Endorsement acknowledges copy of Mr. Giffin ltr of 12/09/08." (Defendant's exhibit No. 5.) Cohen endorsed and deposited this check into his account.

{¶10} For each payment made by Giffin, Cohen presented him with an updated version of the contract that included the date, the amount of payment received, and the outstanding balance due.

{¶11} On July 2, 2009, Giffin filed a complaint alleging breach of contract and violations of Ohio's Consumer Sales Practices Act ("CSPA"), R.C. Chapter 1345. Giffin alleged Cohen breached the contract and violated the CSPA by making changes to the original proposal absent written change orders. Giffin sought damages of $863 for the disputed costs, $1,500 to replace drywall on one wall of the basement, and $190 for an inspection of a replaced gas line damaged during the remodeling. He further prayed that these damages be tripled and that he be awarded attorney fees, pursuant to the CSPA. Giffin further alleged that Cohen's failure to produce receipts for additional items purchased is also a violation of the CSPA.

{¶12} Giffin filed an amended complaint on January 12, 2010, in which Giffin added a count of fraud and/or negligence. A two-day bench trial was conducted on June 4, and 18, 2010. Giffin and Cohen were the only witnesses to testify. The trial court found that a valid contract existed and that Cohen did not breach the contract. The court also found that Cohen did not violate the CSPA or engage in fraud or negligence. No damages were awarded.

{ΒΆ13} The trial court also found Giffin's suit to be without merit and conducted a hearing to determine if Giffin and his attorney, Robert G. Kennedy ("Kennedy") engaged in frivolous conduct in the prosecution of the matter. The trial court found that the allegation of violation of the CSPA, the allegation of breach of contract, and the allegation of fraud and/or negligence prosecuted against Cohen were each frivolous under R.C. 2323.51(A)(2)(a)(iii)-(iv). After a March 2011 hearing, ...

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