[Cite as Griffin Contracting & Restoration v. McIntyre, 2018-Ohio-3121.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




GRIFFIN CONTRACTING AND                                 :
RESTORATION,
                                                        :          CASE NO. CA2017-11-058
        Plaintiff-Appellee,
                                                        :                  OPINION
                                                                            8/6/2018
    - vs -                                              :

                                                        :
SUSAN McINTYRE, et al.,
                                                        :
        Defendants-Appellants.
                                                        :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                           Case No. 2016CVH00948



Maria K. Ante, 7000 Houston Road, Suite 38, Florence, KY 41042, for plaintiff-appellee

Becker & Cade, Dennis A. Becker, 526 A Wards Corner Road, Loveland, Ohio 45140, for
defendants-appellants



        PIPER, J.

        {¶ 1} On August 4, 2015, plaintiff-appellee, Griffin Contracting and Restoration, LLC

("Griffin"), filed a complaint in the Small Claims Division of the Clermont County Municipal

Court asserting a claim for breach of contract. Defendants-appellants, Susan and Jack

McIntyre ("McIntyres"), answered and filed counterclaims asserting a right to rescind the

contract pursuant to the Home Solicitation Sales Act ("HSSA"), and alternatively, rescission
                                                                  Clermont CA2017-11-058

and damages pursuant to the Consumer Sales Practices Act ("CSPA"). The McIntyres also

moved to transfer the case to the Clermont County Court of Common Pleas. The municipal

court granted the motion and transferred the case to the common pleas court. The case

proceeded to trial on October 2, 2017, and the trial court found in favor of Griffin on its

breach of contract claim. The trial court further found the HSSA inapplicable. However, the

trial court did find several CSPA violations and awarded damages to the McIntyres. The trial

court offset the parties' damages with the result being a judgment in favor of the McIntyres.

      {¶ 2} The McIntyres appeal the trial court's decision awarding them damages for less

than the amount they sought to recover by way of their counterclaims against Griffin.

Additionally, the McIntyres also appeal the trial court's findings with respect to their

counterclaims brought pursuant to the HSSA and CSPA.

      {¶ 3} On July 24, 2014, the McIntyres' home sustained fire and smoke damage. The

fire damage was contained to the master bathroom where an electrical outlet caught fire.

The master bathroom, master bedroom, and walk-in closet, all incurred smoke damage.

Susan contacted the family's home insurer, Pekin Insurance ("Pekin"), and made a claim.

Pekin assigned Jessica Henson, a claims adjuster, to administer said claim. Later that

afternoon, Henson responded to the McIntyres' residence to investigate the claim. Henson

testified that she provided Susan the names of two contractors to initiate repairs. Henson

attempted to call the first contractor, but nobody answered. Henson then contacted Griffin.

She placed the call from her cell phone, while still present at the McIntyre residence. It is

unclear whether, and to what extent, Susan participated in the call to Griffin. In her

deposition, Susan testified that Henson made all the phone calls. However, Susan testified

at trial that she was unsure if Henson's cell phone was on speakerphone.

      {¶ 4} A representative from Griffin responded to the McIntyre residence shortly after

Henson departed. The Griffin representative met with Susan. The record does not reflect
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the substance of this conversation.       Afterward, Susan signed an Emergency Service

Authorization, electing to have Griffin initiate emergency repairs.

        {¶ 5} Griffin prepared three separate estimates, each specific to an individual phase

of the repair. First, an estimate for the "contents packout" phase in the amount of $4,757.90.

Second, an estimate for the "mitigation" phase in the amount of $2,672.49. Third, an

estimate for the "rebuild" phase in the amount of $6,948.18, which was later adjusted to

$7,198.18 due to an additional $250 in incidentals. Pekin approved the three estimates and

paid insurance proceeds to the McIntyres for the "contents packout" and "mitigation" phase

estimates. In turn, the McIntyres paid Griffin. Therefore, there is no dispute regarding the

"contents packout" and "mitigation" phases of the repair process.

        {¶ 6} In addition to the Emergency Service Authorization, Susan signed an Insurance

Work Authorization/Contractor Agreement with Griffin. Pekin approved the "rebuild" phase

estimate and issued a check to the McIntyres for $4,211.13. The McIntyres paid Griffin the

$4,211.13. On January 28, 2015, Pekin issued a check to the McIntyres for $2,987.05,

representing the remaining balance due to Griffin. The McIntyres made no further payments

to Griffin.

        {¶ 7} Susan testified at her deposition that she received documents containing

drawings and dimensions; however, she did not recall seeing estimate figures. In her trial

testimony, she did not recall seeing any estimates. Kevin Carpenter, a project manager for

Griffin, testified that he prepared the "rebuild" phase estimate and provided it to Henson on

August 4, 2017, a week before Susan signed the Insurance Work Authorization. Carpenter

further testified that he received an e-mail from an employee of Pekin, which stated the

employee had reviewed the estimate with Susan.

        {¶ 8} Henson testified that Griffin performed all work contracted to be completed and

that Griffin provided a Certification of Completion of Repairs. This certification indicated that
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"all necessary repairs * * * had been completed in a workmanlike manner and that no

materials, labor or [the] like liens have been or will be incurred as a result of labor performed

or materials used." The McIntyres signed this document. Likewise, Susan signed a

Customer Satisfaction Survey, which indicated her "overall impression" of the work was "very

good." The survey form further indicated Susan answered "yes" in response to questions

regarding the following: whether (1) the estimator was prompt, (2) the estimator clearly

explained the process of the work done, (3) Griffin employees were polite, courteous, and

helpful, (4) production staff was neat, knowledgeable, and professional, (5) the work was

done to her satisfaction, (6) she would recommend Griffin to her friends and family, and (7)

Griffin may use her as a reference. Later at trial, Susan testified her impression of the work

performed was "terrible." Susan acknowledged signing the survey, but disputed whether she

checked "yes" to the seven answer boxes.

       {¶ 9} The trial court found in favor of Griffin in the amount of $2,737.05 on its breach

of contract claim. This amount represented the $2,987.05 previously withheld less the

$250.00 for incidentals. With respect to the McIntyres' HSSA counterclaim, the trial court

found the HSSA was inapplicable because there was "insufficient evidence to conclude

Griffin solicited anything from the McIntyres." The trial court determined that the McIntyres

requested Griffin's services, accepted them, and offered no complaints until months after the

work was completed. The trial court stated that, pursuant to the HSSA, it would be "grossly

inequitable" to permit the McIntyres to rescind the contract, while retaining the benefits

therefrom. Even had Griffin violated the HSSA, the resulting damages would equal $0.00. In

regard to the McIntyres' CSPA counterclaim, the trial court found that the work performed

and services rendered constituted a "consumer transaction" and "that Griffin had engaged in

deceptive acts." The trial court found Griffin violated the CSPA in the following ways:

             (1) by failure to provide written notice to the McIntyres of their right

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                  to cancel the transaction, as required by R.C. 1345.23
                  [$200.00 in statutory damages];

             (2) by failure to provide the written notice concerning estimates
                 required by [Ohio Adm.Code] 109:4-3-05(A)(1) [$200.00 in
                 statutory damages]; [and]

             (3) representing that repairs had been made or services
                 performed when they have not, pursuant to [Ohio Adm.Code]
                 109:4-3-05(D)(9). Specifically, by demanding for the full
                 estimate amount, including fees for the replacement of blinds
                 in the bedroom and closet ($76.82[*]2 = $153.64 actual
                 damages), removal and replacement of bathroom floor
                 underlayment ($163.37 actual damages), removal of vinyl floor
                 covering * * * ($53.96 actual damages), and six months of
                 storage when only [three] months was provided ($892.50[/]2 =
                 $446.25 actual damages), Griffin is representing that said work
                 was done, when the Court finds it was not.

       {¶ 10} The trial court found these violations resulted in actual damages of $817.22. It

trebled the damages and awarded $2,451.66, plus the $400.00 for statutory damages. Thus,

the trial court awarded total damages of $2,851.66. The trial court offset the CSPA damages

award with the damages award to Griffin on its breach of contract claim. Thus, the trial court

entered judgment in favor of the McIntyres in the amount of $114.61.

       {¶ 11} The McIntyres timely appealed the judgment of the trial court.

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} THE TRIAL COURT ERRED IN CONCLUDING THAT THE HOME SALES

SOLICITATION ACT DID NOT APPLY TO THE TRANSACTION BETWEEN GRIFFIN

CONTRACTING AND THE MCINTYRES.

       {¶ 14} The McIntyres contend the trial court erred in finding the HSSA inapplicable

based on insufficient evidence that Griffin engaged in a "solicitation" of the sale. The

McIntyres further argue the trial court erred in finding it would be "grossly inequitable" to

require Griffin to return all payments, while allowing the McIntyres "to retain the benefit of the

services, work and materials provided by Griffin."


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       {¶ 15} The essence of the McIntyres' first argument pertains to the trial court's

weighing of the evidence and its judgment as to the credibility of the witnesses. Therefore,

we construe this argument as asserting the trial court's decision finding the HSSA

inapplicable was against the manifest weight of the evidence. See Sterling Constr., Inc. v.

Alkire, 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, ¶ 8. "The standard of

review for a manifest weight challenge in a civil case is the same as that applied to a criminal

case." Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, ¶ 8, citing

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17. Thus, in considering a

manifest weight challenge, a reviewing court weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the finder of fact clearly lost its way and created a manifest

miscarriage of justice warranting reversal and a new trial ordered. Hacker v. House, 12th

Dist. Butler No. CA2014-11-230, 2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20. A judgment

will not be reversed as being against the manifest weight of the evidence where the

"judgment is supported by some competent, credible evidence going to all essential elements

of the case." Ashburn v. Roth, 12th Dist. Butler Nos. CA2006-03-054 and CA2006-03-070,

2007-Ohio-2995, ¶ 26, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978),

syllabus.

       {¶ 16} "In order for the HSSA to cover a transaction, it must be a home solicitation

sale as defined by the Act." Paul Davis Restoration of Cleveland Metro West v. Karaman,

8th Dist. Cuyahoga No. 84824, 2005-Ohio-4017, ¶ 14. R.C. 1345.21(A) defines a "home

solicitation sale" as

              * * * a sale of consumer goods or services in which the seller or a
              person acting for the seller engages in a personal solicitation of
              the sale at a residence of the buyer, including solicitations in
              response to or following an invitation by the buyer, and the
              buyer's agreement or offer to purchase is there given to the seller
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              or a person acting for the seller, or in which the buyer's
              agreement or offer to purchase is made at a place other than the
              seller's place of business.

       {¶ 17} It is undisputed that Griffin is a "seller," the McIntyres are "buyers," and Griffin

performed "consumer services," pursuant to the HSSA. Rather, the issue presented is

whether Griffin "solicited" a sale of its services to the McIntyres. The McIntyres assert the

trial court erred in finding Griffin did not engage in a solicitation of the sale because the

original phone call included Susan's participation. Further, because of this call, Griffin

responded to the McIntyre residence where a Griffin representative engaged in further

discussion with Susan, which culminated in Susan signing the Emergency Service

Authorization. Therefore, the McIntyres assert Griffin engaged in a personal solicitation of

the sale.

       {¶ 18} The trial court found the HSSA did not apply to the transaction between the

McIntyres and Griffin. In so doing, it relied on a Second District opinion involving similar

factual circumstances. See Luckoski v. Allstate Ins. Co., 2d Dist. Montgomery No. 25621,

2013-Ohio-5460.

       {¶ 19} In Luckoski, homeowners suffered a loss due to a fire. Id. at ¶ 2. A claims

adjuster from the homeowners' insurance company informed the homeowners it had a list of

preferred contractors, but that the homeowners were free to use any contractor of their

choosing. Id. at ¶ 18. The claims adjuster then contacted a contractor from the preferred

contractor list. Id. at ¶ 2. The contractor responded to the residence, explained to the

homeowners that he was a part of the insurer's program, but that the homeowners could

arrange for a contractor of their choosing to make the repairs. Id. at ¶ 18. The homeowners

signed an emergency work authorization and selected the contractor to perform the repairs.

Id. The repair did not proceed to the homeowners' satisfaction and the homeowners filed a

complaint, which included a claim brought pursuant to the HSSA. Id.
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       {¶ 20} The trial court found that the HSSA did not apply to the transaction because

the contractor's "express purpose was not to make a sale but to secure the [homeowners']

residence following the fire." Id. at ¶ 42. The trial court found the contractor did not solicit

the repair work, but rather, responded to being dispatched by a claims adjuster for the

homeowners' insurance company. Id. Upon arriving at the residence, the contractor did not

engage in solicitation. Id. Rather, the contractor provided information regarding the program,

which permitted the homeowners to select any contractor for the repair. Id. at ¶ 42-43. The

homeowners, aware of this information, elected to have the contractor complete the repair

work. Id. at ¶ 43.

       {¶ 21} Absent from the record is any indication Griffin engaged in a solicitation of the

sale. Like Luckoski, a claims adjuster from Pekin informed the McIntyres they were free to

select any contractor, but also provided them with preferred options. The claims adjuster

contacted two of the preferred options on behalf of the McIntyres. As the contractor did in

Luckoski, Griffin answered the phone call and responded to the residence to secure it

following the fire and smoke damage. A representative from Griffin arrived and engaged in a

discussion with Susan. The content of this conversation is not known. The McIntyres

ultimately selected Griffin to perform the necessary repair work.           Susan signed an

Emergency Authorization and Griffin began the required work.

       {¶ 22} The HSSA is designed to protect the consumer against high-pressure sales

tactics occurring in the home. Altek Environmental Serv. Co. v. Harris, 5th Dist. Stark No.

2008 CA 00138, 2009-Ohio-2011, ¶ 32. Based on the limited and inconsistent evidence

presented to the trial court, this case simply does not fall within the scope of the HSSA.

Rather, the McIntyres were presented with contractor options, informed of the damage their

residence incurred, and hired Griffin. This evidence does not establish Griffin engaged in a

personal solicitation.
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       {¶ 23} The only evidence presented pertaining to the discussion between Susan and

Griffin is Susan's testimony she was upset on the day the damage occurred. While

homeowners may unsurprisingly be distraught after experiencing significant damage to their

residence, being distraught or upset alone does not mean that any conversation which

occurred had to be a solicitation. The McIntyres further argue that anytime a homeowner

enters such a contract, it is because of a "solicitation." We find this argument unpersuasive

and note the trial court heard evidence that Susan relied upon the claims adjustor to do what

was right for them. Susan testified that "she put the ball in [the claims adjustor's] court."

Significantly, the trial court also discounted Susan's testimony after identifying multiple

inconsistencies, and we defer to the trial court on credibility determinations. See State v.

Glover, 12th Dist. Fayette No. CA2016-11-016, 2017-Ohio-7360, ¶ 42.

       {¶ 24} Noting the facts in Luckoski are markedly similar to the facts of this case, the

trial court applied the holding of Luckoski and found there was insufficient evidence to

conclude Griffin solicited anything from the McIntyres. For the foregoing reasons, we find the

trial court's decision finding the HSSA inapplicable to this case is not against the manifest

weight of the evidence.

       {¶ 25} We next turn to the McIntyres' argument the trial court erred in finding that had

a home solicitation sale occurred, it would be "grossly inequitable" to require Griffin to return

all payments, while allowing the McIntyres "to retain the benefit of the services, work and

materials provided by Griffin." The McIntyres contend Griffin failed to provide notice of their

3-day right to cancel the contract, in violation of the HSSA and CSPA. Based on this failure,

the McIntyres argue they should have been permitted to rescind the contract and should

have received as damages refund of all payments under the contract.

       {¶ 26} Pursuant to the HSSA, each home solicitation sale must be evidenced by a

written agreement. R.C. 1345.22 and 1345.23. Further, the writing must include a statement
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of the buyer's right to cancel under the contract until midnight of the third business day after

the day on which the buyer signs the contract. Id. If the agreement fails to include a

statement of the buyer's right to cancel, then the buyer's right to cancel does not expire. R.C.

1345.23(C). Upon the buyer exercising the right to cancel, the seller must refund all

payments made under the contract to the buyer. R.C. 1345.23(D)(4)(a). Here, Griffin does

not dispute that it did not provide the McIntyres with the required notice of their right to

cancel.

       {¶ 27} We note that the failure to comply with the HSSA constitutes a deceptive act or

practice in connection with a consumer transaction in violation of the CSPA. R.C. 1345.02

and 1345.21 thru 1345.27. Thus, any violation of the HSSA is a violation of the CSPA. Paul

Davis Restoration, 2005-Ohio-4017 at ¶ 14, citing R.C. 1345.28. Pursuant to R.C. 1345.09,

when a violation of the CSPA occurs, a consumer may elect to rescind the contract or to sue

for three times the amount of the actual damages. Thus, "[o]nce the consumer has chosen

to rescind, or cancel, the contract, he is not entitled to recover damages under the [CSPA]."

Clemens v. Duwel, 100 Ohio App.3d 423, 433 (2d Dist.1995). A consumer cannot rescind in

one context and still claim a right to enforce in another. Id.

       {¶ 28} Furthermore, "[t]he HSSA is intended to be a 'shield' for the consumer, not a

'sword.'" Kamposek v. Johnson, 11th Dist. Lake No. 2003-L-124, 2005-Ohio-344, ¶ 33. In

such a situation, the trial court has discretion to make an equitable determination of

damages. Id. Thus, we will not disturb the trial court's determination absent an abuse of

discretion. White v. Allstate Ins. Co., 8th Dist. Cuyahoga No. 92648, 2009-Ohio-5829, ¶ 17,

discussing Kamposek at ¶ 33. An abuse of discretion connotes more than an error of law or

judgment; it implies that the trial court acted unreasonably, arbitrarily, or unconscionably.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶ 29} The McIntyres sought rescission under the HSSA and alternatively damages
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and rescission under the CSPA. They did not make an election as to which remedy they

were pursuing at trial. R.C. 1345.09(C)(1) provides that "in any action for rescission,

revocation of the consumer transaction must occur within a reasonable time after the

consumer discovers or should have discovered the ground for it * * *." The trial court

ultimately awarded damages pursuant to the CSPA and exercised its discretion in finding

rescission under the HSSA would be grossly inequitable. The trial court noted the McIntyres

did not elect to rescind until after Griffin completed the work and had filed a complaint to seek

the balance it felt owed for the work performed. Additionally, the trial court noted the

McIntyres expressed satisfaction with the work via a Customer Satisfaction Survey and a

Certification of Completion of Repairs. The trial court further noted "the McIntyres requested

the service, accepted it, and offered no complaints for months after the work and services by

Griffin were complete."

       {¶ 30} After a thorough review of the record, we find the trial court did not abuse its

discretion in finding that it would be grossly inequitable to permit the McIntyres to rescind the

contract. The record contains ample evidence to support its findings that the McIntyres

elected to have Griffin perform the work and services and offered no complaints for months

after the work and services were complete. In fact, Susan indicated on the Customer

Satisfaction Survey that her overall impression of Griffin's work was "very good." Further, the

Certification of Completion of Repairs, signed by the McIntyres, indicated that all necessary

repairs were completed in workmanlike manner. As the trial court found, it would be

inconsistent with the purpose of the protections provided by the HSSA to permit the

McIntyres to rescind the contract months after completion yet receive the full contract price

and enjoy the benefits of the completed contract. See Kamposek at ¶ 33 (cautioning against

unjust scenarios where a buyer attempts to take advantage of a seller that failed to provide

notice of the right to cancel). Based on this evidence, we find the trial court did not abuse its

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discretion in finding that had the HSSA applied, rescission would have been grossly

inequitable and damages would equal $0.00.

       {¶ 31} Accordingly, the McIntyres' first assignment of error is overruled.

       {¶ 32} Assignment of Error No. 2:

       {¶ 33} THE TRIAL COURT ERRED IN ITS AWARD AND CALCULATION OF

DAMAGES UNDER THE CONSUMER SALES PRACTICES ACT.

       {¶ 34} The McIntyres assert the trial court erred in its award and calculation of

damages pursuant to the CSPA in three respects. First, the McIntyres argue the trial court

erred in finding they failed to meet their burden of proof with respect to certain CSPA

violations. Second, the trial court erred in offsetting its award of damages for CSPA

violations with the damages it awarded Griffin on its breach of contract claim. Third, the trial

court erred in its decision to not award attorney fees to the McIntyres.

       {¶ 35} The arguments posed by the McIntyres require this court to apply two different

standards of review. The McIntyres' first argument asks this court to weigh the evidence

differently than the trial court; therefore, we will conduct a manifest weight of the evidence

review. Dunn, 2016-Ohio-641 at ¶ 8, citing Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179 at

¶ 17. The next two arguments regard the trial court's award of damages, which we review for

an abuse of discretion. Roberts v. United States Fid. & Guar. Co., 75 Ohio St.3d 630, 634

(1996) ("[w]e will not disturb a decision of the trial court as to a determination of damages

absent an abuse of discretion"); Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146

(1991) (stating a trial court's determination whether to award attorney fees based on a CSPA

violation is discretionary, and therefore, is reviewed for an abuse of discretion).

       {¶ 36} The McIntyres contend the trial court erred by finding they failed to prove

certain deceptive acts in violation of the CSPA. Specifically, the McIntyres assert Griffin

committed the following deceptive acts constituting CSPA violations:
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                         Griffin failed to provide the McIntyres with a
                          written estimate at the time of the initial face to
                          face contact and/or prior to any restoration
                          work being done.

The contract did not contain a statement advising the McIntyre[s] they were entitled to a

written, oral, or no estimate.


                         The contract did not contain a reasonable
                          completion date;

                         The contract did not contain a statement of the
                          services to be rendered or an itemization of the
                          repairs to be made;

                         Griffin failed to inform the McIntyres they
                          intended to employ sub-contractors;

                         Griffin failed to provide the McIntyres with an
                          itemized list of repairs to be performed or
                          services rendered, the amount charged for
                          labor and the identity of the individual
                          performing the service.

The McIntyres also contend the trial court erred by not finding an additional deceptive act

pursuant to Ohio Adm.Code 109:4-3-05(D)(9) because Griffin overcharged them to remove a

mirror and to replace drywall in the bathroom. The McIntyres assert it is undisputed these

deceptive acts occurred; therefore, the trial court's judgment finding the McIntyres failed to

meet their burden of proof with regard to these asserted acts is against the manifest weight

of the evidence. Whereas, Griffin asserts these alleged violations were highly disputed at

trial and the trial court did not err in finding against said violations.

       {¶ 37} Ohio Adm.Code 109:4-3-05(A)(1) provides, in pertinent part, that it

               shall be a deceptive act or practice in connection with a
               consumer transaction involving the performance of either repairs
               or any service where the anticipated cost exceeds twenty-five
               dollars and there has been face to face contact between the
               consumer or the consumer's representative and the supplier or
               the supplier's representative, prior to the commencement of the
               repair or service for a supplier to:
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                 (1) Fail, at the time of the initial face to face contact and
                 prior to the commencement of any repair or service, to
                 provide the consumer with a form which indicates the
                 date, the identity of the supplier, the consumer's name
                 and telephone number, the reasonably anticipated
                 completion date and, if requested by the consumer, the
                 anticipated cost of the repair or service. The form shall
                 also clearly and conspicuously contain the following
                 disclosures in substantially the following language:

                 "Estimate

                 ***
                 ________ written estimate

                 ________ oral estimate

                 ________ no estimate"

      {¶ 38} After thoroughly reviewing the record, it is clear the trial court awarded

statutory damages after finding Griffin "fail[ed] to provide the written notice concerning

estimates required by [Ohio Adm. Code] 109:4-3-05(A)(1)." Thus, the record demonstrates

the trial court found this deceptive act occurred and awarded statutory damages accordingly.

Therefore, the McIntyres' argument otherwise is clearly incorrect.

      {¶ 39} The McIntyres next argue it is undisputed the remaining asserted deceptive

acts occurred. However, the record and the briefs herein clearly demonstrate the asserted

deceptive acts are disputed. The record contains conflicting testimony with respect to

whether Griffin furnished written estimates for the three phases for which work was

performed. The project manager testified regarding the program Griffin employs to create

estimates and that he personally created the estimate for the third phase of the repair. He

also testified regarding the three written estimates in the record, which depict drawings and

dimensions and contain individualized repair line items and their corresponding cost.

Additionally, the Emergency Service Authorization and Insurance Work Authorization both

reference these estimates and were signed by Susan. However, Susan testified at trial she

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never received the three estimates. In her deposition, Susan testified she had seen

documents depicting drawings and dimensions but could not recall the specifics of the

documents.

       {¶ 40} While the record contains conflicting testimony regarding whether Griffin

created, and provided to the McIntyres, written estimates containing the pertinent information

at issue on appeal, we find the trial court's findings are not against the manifest weight of the

evidence. Competent, credible evidence exists in the record that the estimates were created

and contained the information at issue. Testimonial evidence conflicts as to whether Susan

received the estimates as well as regarding the extent of the bathroom repair. However, as

discussed above, the trial court discounted Susan's testimony because it was not convinced

that Susan's recollection of events occurring nearly three years ago was completely accurate.

Glover, 2017-Ohio-7360 at ¶ 42 (stating we defer to the trial court's determinations with

respect to witness credibility). The trial court was in the best position to judge the witnesses

and weigh their credibility. Therefore, we find the trial court did not clearly lose its way and

create a manifest miscarriage of justice in finding the McIntyres "failed to prove other alleged

deceptive acts."

       {¶ 41} Next, we turn to the McIntyres' arguments with respect to damages. The

McIntyres assert the trial court erred in its calculation of damages because (1) it offset the

breach of contract and CSPA violation damages, (2) it miscalculated the actual damages of

replacement blinds, and (3) erred in its decision to not award attorney fees.

       {¶ 42} The McIntyres assert "if the CSPA is to have any deterrent effect, the items

which Griffin charged and did not perform should have been deducted from any award made

to Griffin." However, the McIntyres fail to cite any authority demonstrating the trial court

acted unreasonably, arbitrarily or unconscionably, by offsetting damages. Rather, the trial

court, by offsetting damages, did in fact award Griffin the actual damages for its breach of
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contract claim with deductions for the trebled damages brought about by Griffin's deceptive

acts. Therefore, the trial court did not abuse its discretion in this regard.

         {¶ 43} With respect to the replacement blinds, the record reflects Griffin removed the

damaged blinds, but failed to replace the blinds. The cost charged for the replacement blinds

equaled $76.82. The trial court found Griffin violated Ohio Adm.Code 109:4-3-05(D)(9) by

representing it performed repairs or services which it did not perform. Specifically, the trial

court found Griffin committed a violation for demanding full payment of fees for the

replacement of blinds in the bedroom and closet. The McIntyres' contention that the actual

damages are $84.60 fails to acknowledge the inclusion of $7.78 in the blinds line item for

removal, which Griffin performed. Thus, the trial court awarded the actual damages for

replacement blinds of $76.82. Because the award of actual damages equaled the amount

charged for the work that was not completed, the trial court did not abuse its discretion in its

award.

         {¶ 44} Finally, pursuant to R.C. 1345.09(F), a trial court may award attorney fees if

the consumer "complaining of the act or practice that violated [the CSPA] has brought or

maintained an action that is groundless, and the consumer filed or maintained the action in

bad faith," or if the "supplier * * * knowingly committed an act or practice that violate[d the

CSPA]." At issue is the trial court's finding with respect to the latter. Specifically, the trial

court found that "an award of attorney fees to the McIntyres would be inequitable given the

absence of any intent by Griffin to intentionally deceive the McIntyres, and given that the

McIntyres only complained about Griffin's performance after Griffin demanded the balance of

the proceeds."

         {¶ 45} We find the trial court's decision to not award attorney fees was not

unreasonable, arbitrary, or unconscionable. As the trial court found, the record does not

contain any evidence demonstrating Griffin knowingly committed an act or practice that
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violated the CSPA. Therefore, the trial court's decision does not constitute an abuse of

discretion.

       {¶ 46} Accordingly, the McIntyres' second of assignment of error is overruled and the

judgment of the trial court is affirmed.


       S. POWELL, P.J., and M. POWELL, J., concur.




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