[Cite as Quetot v. M&M Homes, Inc., 2013-Ohio-752.]
                        STATE OF OHIO, COLUMBIANA COUNTY

                                IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


ERIC QUETOT, et al.                             )     CASE NO. 12 CO 1
                                                )
        PLAINTIFFS-APPELLANTS                   )
                                                )
VS.                                             )
                                                )
M&M HOMES INC                                   )
                                                )
        DEFENDANT-THIRD PARTY                   )     OPINION
        PLAINTIFF-APPELLEE                      )
                                                )
VS.                                             )
                                                )
ALLEN RUMMEL, et al.                            )
                                                )
        THIRD-PARTY                             )
        DEFENDANTS-APPELLEES                    )

CHARACTER OF PROCEEDINGS:                             Civil Appeal from the Court of Common
                                                      Pleas of Columbiana County, Ohio
                                                      Case No. 10 CV 979

JUDGMENT:                                             Affirmed.




JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                      Dated: February 25, 2013
[Cite as Quetot v. M&M Homes, Inc., 2013-Ohio-752.]
APPEARANCES:

For Plaintiffs-Appellants Eric & Tina Quetot:         Atty. Geoffrey D. Korff
                                                      The Korff Law Firm LLC
                                                      310 E. Euclid Ave.
                                                      Salem, Ohio 44460


For Defendant-Appellee M&M Homes:                     Atty. Michael P. Marando
                                                      Pfau, Pfau & Marando
                                                      P.O. Box 9070
                                                      Youngstown, Ohio 44513


For Third Party Defendant Allen Rummel:               Atty. Wm. Scott Fowler
                                                      Comstock, Springer & Wilson Co., LPA
                                                      100 Federal Plaza East, Suite 926
                                                      Youngstown, Ohio 44503


For Third Party Defendant Boak & Son, Inc.:           Atty. Craig G. Pelini
                                                      Pelini, Campbell, Williams & Traub, LLC
                                                      8040 Cleveland Ave., NW, Suite 400
                                                      N. Canton, Ohio 44720


For Third Party Defendant James R. Close,             Atty. James E. Featherstone
dba Siding Guys:                                      610 South Front Street
                                                      Columbus, Ohio 43215


For Third Party Defendant L&L Masonry:                Atty. Brian J. Macala
                                                      117 South Lincoln Avenue
                                                      Salem, Ohio 44460


For Third Party Defendant David Rose,                 Atty. Maria Placanica
dba Rose Excavating:                                  50 South Main Street, Suite 502
                                                      Akron, Ohio 44308


Third Party Defendant:                                Ted Bell, dba Bell Plumbing
                                                      580 Continental Drive
                                                      Salem, Ohio 44460
[Cite as Quetot v. M&M Homes, Inc., 2013-Ohio-752.]
WAITE, J.


        {¶1}    Appellants Eric and Tina Quetot (“Appellants”) are appealing a partial

summary judgment decision of the Columbiana County Court of Common Pleas.

Appellants filed a multi-count complaint arising from disputes over a house that was

built for them by Appellee M&M Homes Construction, Inc. (“M&M Homes”). One of

the counts involved an alleged violation of the Consumer Sales Protection Act

(“CSPA”). The court granted summary judgment to Appellee on the CSPA claim, but

other claims remain pending. The trial court determined that Appellants’ CSPA claim

was barred by the two-year statute of limitations in R.C. 1345.10(C), because

Appellants’ home was built in 2007, but their complaint was not filed until 2010.

        {¶2}    Appellants argue on appeal that their CSPA claim was not time barred.

The parties all agree that a CSPA claim may be brought for a deceptive act that

occurs before, during or after a consumer transaction.           R.C. 1345.02(A).     The

consumer transaction in this case was the building of a house.              Even though

Appellants’ home was constructed in 2007, Appellants claim that a relevant,

deceptive act occurred in 2009 when Nathan Maley of M&M Homes made

representations that it would continue to repair any construction problems that arose

and then failed to correct these problems. Appellants contend that they filed their

complaint within two years of the 2009 deceptive promise. Appellants are mistaken

in their contention. The record does not contain any evidence as to a deceptive

promise or assurance made by M&M Homes in 2009. Further, we have held that

when it is the initial construction (rather than any subsequent repairs) that constitutes

the alleged violation, it is the initial construction that triggers the two-year statute of
                                                                                     -2-

limitations. Rosenow v. Shutrump & Assoc., 163 Ohio App.3d 500, 2005-Ohio-5313,

839 N.E.2d 82 (7th Dist.). Appellants’ argument is neither legally persuasive nor

supported by the record.

       {¶3}    In Appellants’ second assignment of error they request that we reverse

the trial court’s ruling regarding whether punitive damages and attorney fees may be

sought on a pending tort claim. The trial court did not deny the possibility of punitive

damages and attorney fees for the tort claim and no relief is necessary on appeal.

Both of Appellants’ assignments of error are overruled, and the judgment of the trial

court is affirmed.

                                  History of the Case

       {¶4}    This case arose out of the construction of a single family residence by

M&M Homes in late 2006 and early 2007 for Appellants in New Waterford, Ohio. The

contract was entered into on September 1, 2006. M&M Homes was the general

contractor, and it utilized a variety of subcontractors in construction. Mr. Nathan

Maley is the founder of M&M Homes and is one of the two shareholders of the

corporation.

       {¶5}    Appellants moved into the house in February, 2007. Appellants found

problems with the structure soon after they moved in. These problems included

issues with the drywall, the roof, plumbing, water leaks, and excess moisture.

Appellants contacted M&M homes about these problems in 2007 and M&M Homes

attempted to correct the problems.
                                                                                   -3-

      {¶6}    Appellants filed a multi-count lawsuit against M&M Homes on October

27, 2010. The complaint alleged negligence (Count I), breach of implied warranty of

habitability (Count II), breach of implied warranty (Count III), violation of the CSPA

(Count IV), breach of contract (Count V), and unjust enrichment (Count VI).

Appellants asked for punitive damages and attorney fees. M&M Homes filed an

answer and a third-party complaint impleading various subcontractors.            After

discovery was completed, M&M Homes filed a motion for summary judgment on

counts I (negligence), II (beach of implied warranty), IV (CSPA violation), and VI

(unjust enrichment). M&M Homes also sought summary judgment with respect to

claims for punitive damages and bifurcation of the punitive damages issue.

Appellants subsequently dismissed Count II and Count VI of the complaint, leaving

the court to resolve Count I (negligence) and Count IV (CSPA violation) in summary

judgment.    Appellants later added a claim of negligent misrepresentation to their

complaint.

      {¶7}    On January 3, 2012, the trial court ruled that Appellants’ CSPA claim

was time barred.    It denied M&M Homes’ motion for summary judgment on the

negligence claim. It also ruled that the claim for punitive damages under the CSPA

was time barred, and that the motion to bifurcate the claims for punitive damages

was moot. Thus, the court granted partial summary judgment to M&M Homes only

on the CSPA claim and on the claim for punitive damages under the CSPA.

Appellants filed an appeal on January 11, 2012. We notified the parties that the

January 3, 2012, judgment entry was not a final appealable order and did not contain
                                                                                       -4-

the language required by Civ.R. 54(B) to allow the partial summary judgment to be

treated as a final appealable order.      The court amended its judgment entry on

February 15, 2012, to include the appropriate language and this appeal may now

proceed.

                           ASSIGNMENT OF ERROR NO.1

       APPELLANTS’ CSPA CLAIM IS BASED ON ACTIONS AND

       REPRESENTATIONS OF THE DEFENDANT THAT OCCURRED

       WELL     AFTER      CONSTRUCTION           OF     THEIR     HOME      WAS

       COMPLETED,        AND     WITHIN      THE       2-YEAR    STATUTE       OF

       LIMITATIONS REQUIRED FOR A CSPA CLAIM.

       {¶8}   Appellants present two arguments in support of the idea that the CSPA

claim was not time barred by the two-year limitations period found in R.C.

1345.10(C).    The parties agree on almost everything necessary to resolve this

matter.    Their only material disagreement revolves around what Mr. Maley (the

representative of M&M Homes) said or meant in his deposition.

       {¶9}   The parties agree on the relevant law.         First, they agree that the

appellate court conducts a de novo review of a trial court’s decision to grant summary

judgment, using the same standards as the trial court as set forth in Civ.R. 56(C).

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before

summary judgment can be granted, the trial court must determine that (1) no genuine

issue as to any material fact remains to be litigated, (2) the moving party is entitled to

judgment as a matter of law, and (3) it appears from the evidence that reasonable
                                                                                    -5-

minds can come to but one conclusion, and viewing the evidence most favorably in

favor of the party against whom the motion for summary judgment is made, the

conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317,

327, 364 N.E.2d 267 (1977).       When a court considers a motion for summary

judgment, the facts must be taken in the light most favorable to the nonmoving party.

Id.

      {¶10} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving

party has the reciprocal burden of setting forth specific facts showing that there is a

genuine issue for trial. Id. at 293. In other words, when presented with a properly

supported motion for summary judgment, the nonmoving party must produce some

evidence that suggests that a reasonable factfinder could rule in that party’s favor.

Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th

Dist.1997).

      {¶11} The parties also agree on the basic law applicable to the statute of

limitations for a CSPA claim. The parties assume for the sake of argument that the

services provided by M&M Homes were covered by the CSPA, found in R.C. 1345.01

et seq. Pursuant to R.C. 1345.10(C), “[a]n action under sections 1345.01 to 1345.13

of the Revised Code may not be brought more than two years after the occurrence of
                                                                                      -6-

the violation which is the subject of suit[.]”       Thus, the statute of limitations

commences to run from the date of the occurrence of the violation, which is not

necessarily the date of any underlying transaction.      Luft v. Perry Cty. Lumber &

Supply Co., 10th Dist. No. 02AP-559, 2003-Ohio-2305, ¶27.             Rather, the Ohio

general assembly explicitly recognized that a CSPA violation may occur before,

during or after the underlying consumer transaction.            R.C. 1345.02(A) and

1345.03(A).

       {¶12} No discovery rule applies to claims for monetary damages under the

CSPA. Weaver v. Armando’s, Inc., 7th Dist. No. 02 CA 153, 2003-Ohio-4737, ¶37;

Lloyd v. Buick Youngstown, GMC, 115 Ohio App.3d 803, 807, 686 N.E.2d 350 (7th

Dist.1996). R.C. 1345.09(C)(1) limits the discovery rule to claims for rescission or

revocation of the consumer transaction:      “(C)(1) Except as otherwise provided in

division (C)(2) of this section, 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 and before any substantial change in

condition of the subject of the consumer transaction.” In other words, when there is a

claim for money damages under the CSPA, the statute of limitations begins to run

when the violation occurs, not when the consumer discovers the violation. “R.C.

1345.10(C) sets forth an absolute two-year statute of limitations for such damage

actions.” Luft at ¶25, citing Cypher v. Bill Swad Leasing Co., 36 Ohio App.3d 200,

202, 521 N.E.2d 1142 (10th Dist.1987). There is no dispute that Appellants are
                                                                                       -7-

claiming monetary damages in this case. Therefore, the discovery rule does not

apply to their CSPA claim.

        {¶13} The dispute in this appeal, which was the same dispute at the trial court

level, is about the date of the alleged “occurrence” that triggered the two-year statute

of limitations.   There is no question that a “transaction” took place starting on

September 1, 2006, when the parties entered into the contract to build a home. This

transaction continued until the house was built and Appellants occupied it in early

2007.

        {¶14} It is at this point that the parties’ arguments diverge. Appellants first

argue that the statute of limitations was tolled starting on June 18, 2010, when they

sent a letter to M&M Homes about defects in the construction.            Appellants sent

another letter on September 22, 2010, notifying M&M Homes of the impending

lawsuit. Under R.C. 1312.04, an owner may not commence arbitration or litigation

against a builder of a residential building until 60 days after providing the builder with

notice of the alleged construction defects. R.C. 1312.08 provides that once notice of

the defects is sent, all applicable statutes of limitation are tolled until the owner

complies with R.C. Chapter 1312. After receiving notice, the builder must provide a

response. If the builder fails to respond or disputes the claim, an owner is deemed to

have complied with the statute and may commence suit. Appellants contend that

they complied with R.C. 1312.04 and 1312.08, and that the statute of limitations did

not expire.
                                                                                    -8-

      {¶15} Appellants’ argument is without merit.           Since the house was

constructed and occupied in early 2007, the two-year statute of limitations would

have already run by June 18, 2010, and the tolling provision would have been moot

by then. Further, the letters of June 10th and September 22nd, 2010, were not

properly before the trial court, nor are they properly before us on appeal. They were

attached to Appellants’ memorandum in opposition to summary judgment, but they

were not referenced in an affidavit.     Civ.R. 56(C) provides an exclusive list of

materials a trial court may consider when deciding a motion for summary judgment:

affidavits, depositions, answers to interrogatories, written admissions, transcripts of

evidence in the pending case, and written stipulations. Aegis v. Sedlacko, 7th Dist.

No. 07MA128, 2008-Ohio-3190, ¶22. No other evidence may be considered unless it

is introduced as “evidentiary material only through incorporation by reference in a

properly framed affidavit.” Mitchell v. Internatl. Flavors & Fragrances, Inc., 179 Ohio

App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶17 (10th Dist.); see, also, Civ.R.

56(C). A party cannot simply attach documents to its memorandum in opposition to

summary judgment and expect the court to treat those documents as evidence.

      {¶16} Whether Appellants tolled or did not toll the statute of limitations on

June 18, 2010, does not determine the outcome of this assignment of error. The only

significant question under this assignment of error is whether there was an

“occurrence of a violation” within two years of October 27, 2010, which is the date the

complaint was filed.
                                                                                       -9-

       {¶17} Appellants’ basis for relief on appeal is premised on some type of

alleged promise or assurance made by Nathan Maley in 2009 that they posit can be

found on pages 39-40 of his deposition. Appellants cite cases that supposedly stand

for the proposition that the two-year statute of limitations begins to run anew if the

contractor continues to make assurances that it will remedy a problem arising from a

much earlier consumer transaction, and then fails to follow through on the promise.

See Keiber v. Spicer Construction Co., 2d Dist. Nos. 98CA23, 98CA30 (May 28,

1999); Roelle v. Orkin Exterminating Company, Inc., 10th Dist. No. 00AP-14, 2000

WL 1664865 (Nov. 7, 2000); Hofstetter v. Fletcher, 905 F.2d 897 (6th Cir.1988). The

point Appellants draw from these cases is that a promise made by a contractor long

after the initial transaction may still be considered an “occurrence of a violation” if it

arises from the initial transaction and is deceptive, i.e., is not carried out. Appellants

contend that Mr. Maley made such a promise sometime in 2009.

       {¶18} Appellants’ argument fails for two important reasons. First, we have

made it clear that if the allegation is that monetary damages stem from the initial

construction or installation, then the two-year statute of limitations in R.C. 1345.10(C)

is absolute and runs from the time of initial construction or installation. In Rosenow,

we reasoned as follows:

       Appellant also argues that appellees violated the OCSPA by deceiving

       him when they made assurances that the roof was repaired. However,

       this contention lacks evidentiary support.       The evidence does not

       demonstrate that appellees gave assurances to appellant that they
                                                                                    -10-

       repaired all problems with the roof. In fact, appellant’s affidavit states

       that Shutrump attempted to fix the roof, but was unsuccessful.

       Because the evidence demonstrates that the roof was likely improperly

       installed, any violation of the OCSPA occurred in 1998 when the roof

       was installed.    Again, appellant is time barred by the statute of

       limitations. Appellant’s argument that the repairs performed in 2001

       also constitute a violation is unsupported by the evidence because the

       improper installation, not the subsequent repairs, led to the problems

       with the roof.

Id. at ¶18.

       {¶19} Appellants try to circumvent our decision in Rosenow by characterizing

Mr. Maley’s promise as a promise to do new work on their home. Unfortunately for

Appellants, there is no evidence of a promise of any kind made by Mr. Maley in the

section of the deposition they cite. Appellants refer to pages 39-40 of the deposition

three times without specifically highlighting the alleged statements made by Mr.

Maley that they claim entitle them to relief. Those two pages are reproduced in their

entirety below. Note that Mr. Korff is Appellants’ attorney, and Mr. Marando is M&M

Homes’ attorney.

       MR. KORFF: Strike that.


       Q Was there a point where Mr. Quetot, you instructed Mr. Quetot just

       to call the subcontractor directly to fix any problems?
                                                                         -11-

A No. I would have given him his phone number if they would have

asked.   But I didn’t instruct them to call them.    They’re more than

welcome to call me any time. Never do I turn somebody down from

calling me, never.


Q After 2008, do you remember there being any additional issues with

the house that were raised to you?


A Up till present, 2008 up till now you’re saying?


Q Yes.


A In ’09, January of ’09, January or February of ’09 my partner, who

did not work with the Quetots, did not really even know the Quetots,

calls me and says, Eric Quetot called asking for the roofer’s phone

number. I believe he gave him the roofer’s phone number at that time.

I wasn’t even asked to call, but I did. He called me and told me, he

said, I just wanted you to know that.


So I called Mr. Quetot and asked him what the problem was. At this

time there was about 20 or 20, that was when we had one of those 20-

to 24-inch snows. He told me where he was getting a little water in in

the, in the laundry room.
                                                                             -12-

And at that point I told him that snow will have to come off of there

before a roofer can repair, can look at that. And this was, this was,

what, three years he was into the house now, probably three years.


Then I received -- I didn’t hear anything back for probably, it was

probably a month and a half, two months. Then I received a letter in

the mail demanding that I pay 2900 or $3,000 from the Quetots’

insurance company. There was not contact at all to let me know what

was going on.


So I just gave it to my insurance company, and asked them, what

should I do? I really wanted to just call up and see if I could fix the

problem. But it wasn’t in that form. It was demanding that I pay this

amount of money.


Insurance company says, we’ll handle it. And then I received a letter

from his, or from his attorney. And that’s up, up till now where we’re at.


MR. MARANDO: Off the record a second, Geoff.


(Whereupon, a discussion was held off the record.)


Q Okay. You mentioned that there was a --


MR. KORFF: Well, strike that.


Q You said that your partner gave Mr. Quetot the [end of page 40].
                                                                                    -13-

(8/24/11 Maley Depo., pp. 39-40.)

       {¶20} There is nothing in this section of Mr. Maley’s deposition that

constitutes a promise to complete work or a promise to correct a problem with the

house. Maley did not even promise to have someone look at the roof because there

was too much snow for a roofer to examine the alleged problem. Maley says he

waited for a response from Appellants after speaking with Mr. Quetot, but no

response came. Maley later received a demand letter from Appellants’ insurance

company.     He called his own insurance company to report the matter, and the

insurance company told him it would deal with the problem.           Then a letter was

supposedly sent from Appellants’ attorney to M&M Homes on June 18, 2010,

demanding the cost of repairs. On review, we are mystified by Appellants’ assertion

that we can find a basis for a consumer protection claim arising in 2009, based on the

aforementioned deposition pages. In fact, a review of the total record on appeal is

void of any evidence of any such alleged promise.

       {¶21} Because Appellants are claiming relief for damages arising from the

initial construction of their home, and because such relief under the CSPA is barred

by the statute of limitations in R.C. 1345.10(C), the trial court was correct in granting

summary judgment to M&M Homes on the CSPA claim. Appellants’ first assignment

of error is overruled.

                          ASSIGNMENT OF ERROR NO. 2
                                                                                  -14-

      CLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES MAY

      BE    BROUGHT       ON    ANY    TORT    CLAIM,    NOT     ONLY    CSPA

      VIOLATIONS.

      {¶22} In Appellants’ second assignment of error they request that we reverse

the trial court’s decision denying punitive damages and attorney fees for a pending

tort claim. The trial court did not deny these fees for the tort claim. The judgment

entry stated: “this Court also finds as a matter of law that the Plaintiffs’ claims for

punitive damages and attorney fees based on the CSPA are also time barred.”

(2/15/12 J.E., p. 9.)   Nothing is mentioned about any other claims for punitive

damages or attorney fees. Therefore, the request for those fees remains pending.

Since the alleged error did not occur, no relief is necessary on appeal. Appellants’

second assignment of error is overruled.

                                      Conclusion

      {¶23} Appellants argue that their CSPA claim is not time barred under the

two-year statute of limitations in R.C. 1345.10(C). Appellants have not demonstrated

that M&M Homes took any action within two years of the filing of their complaint that

constitutes an “occurrence of a violation.” Without such an occurrence, the claim is

time barred. Appellants’ reliance on pages 39-40 of the deposition of Nathan Maley

is unwarranted because there is nothing in the deposition that can constitute any type

of promise or assurance actionable under the CSPA. Appellants also request that

punitive damages and attorney fees be allowed for their tort claim, but this was never
                                                                                       -15-

denied by the trial court and no relief on appeal is needed. Both of Appellants’

assignments of error are overruled, and the judgment of the trial court is affirmed.


Vukovich, J., concurs.

DeGenaro, P.J., concurs.
