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Garber v. STS Concrete Co., L.L.C.

Court of Appeals of Ohio, Eighth District

June 27, 2013

PATRICK GARBER PLAINTIFF-APPELLEE
v.
STS CONCRETE CO., L.L.C., ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-694321

ATTORNEY FOR APPELLANTS Brian M. Fallon

ATTORNEY FOR APPELLEE Anthony J. Amato

BEFORE: Celebrezze, P.J., Keough, J., and E.A. Gallagher, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR., P.J.

{¶ 1} Appellants, STS Concrete Co., L.L.C. ("STS") and Frank Suglio, appeal a judgment in favor of appellee, Patrick Garber, for $18, 600 and $5, 524.24 in attorney fees. Appellants claim the trial court erred in awarding Garber treble damages, attorney fees, and holding Suglio individually liable. After a thorough review of the record and law, we affirm in part and reverse in part.

I. Factual and Procedural History

{¶2} STS is a contracting company owned by Suglio that does concrete and masonry work. On June 8, 2008, STS was renovating a driveway in Garber's neighborhood. Garber's neighbor had recommended STS to Garber, and he stopped by the job site and spoke to Suglio about possibly redoing a driveway, sidewalk, and steps. Suglio met with Garber at Garber's home and provided a quote of $6, 200. Garber entered into a contract with STS for those repairs on June 21, 2008. The contract did not provide Garber with a notice of his right to cancel within three days. STS began work on Garber's home several days later. It removed the concrete drive and sidewalk and poured a new driveway, sidewalk, and steps. The work was approved by the city inspector, and STS was paid in full on July 9, 2008.

{¶ 3} Garber asserts that the day after the work was complete, the driveway cracked in several places. He further alleged that he contacted Suglio and complained. According to Garber, Suglio agreed to fix the cracked sections of the driveway, but never did. Approximately ten months after the work was completed, Garber sent STS notice that he was rescinding the contract and requested the return of $6, 500 paid by him.[1]Suglio refused to return the money, and Garber then filed suit.

{¶ 4} Garber's suit against STS and Suglio individually included claims for breach of contract, negligence, and violations of the Ohio Consumer Sales Practices Act ("CSPA") and the Ohio Home Solicitation Sales Act ("HSSA"). STS and Suglio answered and discovery was conducted. On December 2, 2009, at the close of discovery and depositions, Garber moved for partial summary judgment on the CSPA and HSSA claims. Garber's motion asked for judgment on the CSPA/HSSA violations and to hold Suglio individually liable for those violations. After extensive briefing, the trial court granted Garber's motion for partial summary judgment on March 12, 2010. The trial court set forth damages in the amount of $18, 600, "($6, 200 x 3)."

{¶5} Following the trial court's grant of partial summary judgment, Garber moved the trial court to allow him to file an amended complaint to dismiss the remaining claims. The court granted Garber leave, but an amended complaint was not filed at that time. Appellants filed a motion for relief from judgment and appealed to this court after their motion was denied. We dismissed the appeal for lack of a final, appealable order. Garber then filed an amended complaint dismissing the remaining claims for relief, and appellants filed the instant appeal raising three assignments of error for review:

I. The trial court erred by granting the plaintiff's motion for summary judgment and awarding rescission damages and treble damages and by overruling the motion for relief from judgment.
II. The trial court erred by holding Frank Suglio personally liable for damages.
III. The trial court erred in awarding attorney's fees.

II. Law and Analysis

A. Final, Appealable Order

{¶ 6} This court feels compelled to address jurisdictional grounds necessary to hear this appeal. The trial court granted partial summary judgment to Garber, setting forth an order that found appellants liable and determined an appropriate amount of damages. This order for partial summary judgment is generally not a final, appealable order because it does not dispose of all the pending claims for relief. "According to Civ.R. 54(B), an action is not terminated unless the court has resolved all of the claims or the rights and liabilities of all of the parties, or the court has specified that there is no just reason for delay." Brigadier Constr. Servs. v. JLP Glass Prods., 8th Dist. No. 97624, 2012-Ohio-2314, ¶ 8. Further, '"An order which adjudicates one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties must meet the requirements of [both] R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable.'" Reagan v. Ranger Transp., 104 Ohio App.3d 15, 17, 660 N.E.2d 1234 (11th Dist. 1995), quoting Noble v. Colwell, 44 Ohio St.3d 92, 96, 540 N.E.2d 1381 (1989). Where partial summary judgment has been granted, Civ.R. 41(A)(1) cannot be used to dismiss the remaining claims against a party to create a final, appealable order because '"[t]o do so would permit piecemeal litigation and piecemeal appeals, which are disfavored in the law.'" Reagan at 18, quoting Borchers v. Winzeler Excavating Co., 2d Dist. No. 13297, 1992 Ohio App. LEXIS 2091 (Apr. 10, 1992). Also, Civ.R. 41(A)(1)(a) states that a plaintiff "may dismiss all claims asserted by that plaintiff * * *." Dismissing some, but not all claims is not contemplated by the rule.

{¶ 7} Here, Garber did not attempt to utilize Civ.R. 41 to create a final, appealable order. Garber was granted leave to file an amended complaint pursuant to Civ.R. 15(A). This amended pleading narrowed his claims for relief to only those that had been addressed in his favor in the trial court's journal entry granting summary judgment. This transformative act disposed of the pending claims and left nothing further for the trial court to determine. These claims cannot be refiled, [2] as those dismissed without prejudice under Civ.R. 41(A) may be. Rush v. Maple Hts., 167 Ohio St. 221, 147 N.E.2d 599 (1958). This practice has been recognized by the Ohio Supreme Court as appropriate to create a final, appealable order when it held that "the proper procedure for a plaintiff to dismiss fewer than all claims against a single defendant is to amend the complaint pursuant to Civ.R. 15(A)." Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 19, citing Reagan at 18; Kildow v. Home Town Improvements, 5th Dist. No. CT2001-0057, 2002-Ohio-3824, ¶ 11; Lewis v. J.E. Wiggins & Co., 10th Dist. Nos. 04AP-469, 04AP-544, and 04AP-668, 2004-Ohio-6724, ¶ 17.

{ΒΆ 8} Liability and appropriate relief have been determined and set forth in a journal entry that completely set forth the rights and responsibilities of the parties in this action. Therefore, the amendment of the complaint caused the journal entry granting summary judgment to be a final, appealable ...


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