[Cite as Sterling Constr., Inc. v. Alkire, 2017-Ohio-7213.]



                                       IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                             MADISON COUNTY




STERLING CONSTRUCTION, INC.,                                  :
                                                                  CASE NO. CA2016-12-032
          Plaintiff-Appellee,                                 :
                                                                       OPINION
                                                              :         8/14/2017
    - vs -
                                                              :

BRIAN ALKIRE,                                                 :

          Defendant-Appellant.                                :




          CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                             Case No. CVH20110196


Thomas Spetnagel, 42 East Fifth Street, Chillicothe, Ohio 45601, for plaintiff-appellee

Eastman & Smith Ltd., Bryan Jeffries, 100 Broad Street, Suite 2100, Columbus, Ohio 43215,
for defendant-appellant



          S. POWELL, P.J.

          {¶ 1} Defendant-appellant, Brian Alkire ("Alkire"), appeals from the decision of the

Madison County Court of Common Pleas upon remand from this court in a suit initiated by

plaintiff-appellee, Sterling Construction, Inc. ("Sterling"). For the reasons outlined below, we

affirm.

          {¶ 2} This matter was previously appealed to this court in Sterling Constr., Inc. v.

Alkire, 12th Dist. Madison Nos. CA2013-08-028 and CA2013-08-030, 2014-Ohio-2897
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(hereinafter "Sterling I"). As stated in that case, the relevant facts are as follows:

              Sterling is owned by Dave Kohli. Kohli met Alkire when Alkire
              was approximately nine years old, and the two shared a
              friendship that spanned more than 30 years. At different times
              throughout their association, Alkire performed work on Kohli's
              farm and also helped with Kohli's livestock, and Kohli and his
              construction company performed work for Alkire and Alkire's
              mother.

              In 2009, Alkire expressed his interest in purchasing a home, and
              consulted Kohli about renovation expenses and financing for the
              home. Kohli and Alkire walked through the home prior to Alkire
              purchasing it, and the two discussed possible remodeling
              scenarios. Alkire expressed his desire to see the house
              updated, and agreed to hire the architect suggested by Kohli in
              order to make renovation plans. Kohli later placed Alkire in
              contact with a financial institution, and Alkire obtained financing
              and purchased the home.

              Before, during, and after Alkire acquired the house, Alkire and
              Kohli had multiple phone conversations and walk-throughs of the
              house to discuss how much the renovations would cost. Kohli
              estimated that replacing the roof would cost $5,000, adding a
              porch would cost $10,000, replacing the garage door would be
              $1,600, replacing vinyl siding would be $3,000 and relocating
              electrical work would be $2,500. However, Kohli did not offer
              estimates for other work that was to be done because Alkire did
              not request additional estimates.

              Kohli and Sterling employees began working on Alkire's house,
              including replacing the roof, building the porch, replacing
              windows, and framing the inside of the home to make changes to
              the kitchen, bathroom, closets, and master bedroom. After
              paying a total of $40,000 to Sterling for materials and labor,
              Alkire and Kohli had some disagreements. Despite the fact that
              Sterling had not completed the remodel, Alkire directed Kohli that
              Sterling was not to come back to his property. Neither Kohli nor
              Sterling's employees returned to Alkire's home after being told by
              Alkire not to come back. Sterling later informed Alkire that he
              owed $26,472.18 more for materials and services it had
              provided. Alkire refused to make any additional payments to
              Sterling.

              Sterling filed suit against Alkire, claiming unjust enrichment and
              breach of contract. Alkire counterclaimed, and alleged breach of
              contract, unjust enrichment, and multiple violations of Ohio's
              Consumer Sales Practices Act. The matter proceeded to a two-
              day bench trial. During the trial, the court heard testimony from

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               Alkire, Kohli, Rex Cockrell (a Sterling employee), Phyllis Kohli
               (Kohli's wife and Sterling employee), and Walter Morrow, an
               expert in matters related to the construction industry.

               The trial court found that neither party carried its burden, so that
               neither party was entitled to judgment on their claims/counter-
               claims. In so doing, the trial court found that the parties'
               relationship and informal transaction made the series of events a
               nontraditional consumer transaction not contemplated by the
               Consumer Sales Practices Act. The trial court also found that
               neither party was unjustly enriched, and that there was never a
               contract between the parties.

Sterling I, ¶ 2-7.

       {¶ 3} Sterling appealed from the trial court's decision finding that a contract did not

exist and that Alkire was not unjustly enriched. Alkire also appealed from the trial court's

decision finding that the Ohio Consumer Sale Practices Act ("CSPA") did not apply to the

case at bar. In reversing the trial court's decision, this court determined that the trial court

erred by finding the CSPA was not applicable. This court also determined the trial court

erred by finding the parties had not entered into an implied contract. On remand, the trial

court determined that Sterling failed to establish Alkire breached the implied contract

between the parties, but found Sterling had committed two violations of the CSPA that

entitled Alkire to recover $400 in statutory damages. The trial court further found that, under

the totality of the circumstances, awarding Alkire with any attorney fees would be

"unequitable."

       {¶ 4} Alkire now appeals from the trial court's decision, raising five assignments of

error for review. For ease of discussion, Alkire's third, fourth, and fifth assignments of error

will be addressed together.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED BY NOT PROPERLY APPLYING ALL OF THE

APPLICABLE PROVISIONS OF THE CONSUMER SALES PRACTICES ACT IN


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DETERMINING WHETHER ALKIRE WAS ENTITLED TO ATTORNEYS' FEES.

       {¶ 7} In his first assignment of error, Alkire argues the trial court erred by finding

Sterling only committed two violations of the CSPA, without also finding Sterling violated Ohio

Admin.Code 109:4-3-05(D)(3), which addresses when the supplier must obtain authorization

from the consumer for price increases regarding any additional, unforeseen, but necessary

repairs when the cost of those repairs amounts to ten per cent or more (excluding tax) of the

original estimate. We disagree.

       {¶ 8} Although couched in a claim regarding attorney fees, Alkire argues the trial

court's decision finding Sterling did not violate Ohio Admin.Code 109:4-3-05(D)(3) was

against the manifest weight of the evidence. "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.

       {¶ 9} There is no dispute that the record fully supports the trial court's decision

finding Sterling violated the CSPA by failing to provide Alkire with both a written estimate and

a receipt, conduct that violates Ohio Admin.Code 109:4-3-05(A)(1) and Ohio Admin.Code
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109:4-3-07(C), respectively. What is in dispute, however, is whether the trial court erred by

not finding Sterling also violated Ohio Admin.Code 109:4-3-05(D)(3), a section which

provides:

              (D) In any consumer transaction involving the performance of
              any repair or service it shall be a deceptive act or practice for a
              supplier to:

              ***

              (3) Fail, in those cases where an estimate has been requested
              by a consumer, and the anticipated cost of the repair or service
              exceeds fifty dollars, to obtain oral or written authorization from
              the consumer for the anticipated cost of any additional,
              unforeseen, but necessary repairs when the cost of those repairs
              amounts to ten per cent or more (excluding tax) of the original
              estimate[.]

       {¶ 10} As the plain language of Ohio Admin.Code 109:4-3-05(D)(3) indicates, this

section only applies to "those cases where an estimate has been requested by a

consumer[.]" In this case, Alkire never requested an estimate from Sterling. Therefore, just

as the trial court found, it is impossible to apply Ohio Admin.Code 109:4-3-05(D)(3) to the

case at bar "because there is insufficient evidence to establish that more than a 10%

increase occurred when no original estimate was provided." We find no error in the trial

court's decision. Therefore, Alkire's first assignment of error is without merit and overruled.

       {¶ 11} Assignment of Error No. 2:

       {¶ 12} THE TRIAL COURT ERRED IN CALCULATING ALKIRE'S ACTUAL

DAMAGES FOR THE UNDISPUTED CONSUMER SALES PRACTICES ACT VIOLATIONS.

       {¶ 13} In his second assignment of error, Alkire argues the trial court erred by finding

he had not suffered any actual economic damages resulting from Sterling's two violations of

the CSPA, thus limiting Alkire to a total of $400 in statutory damages pursuant to R.C.

1345.09(B). However, just as the trial court found, Alkire failed to prove he suffered any

actual economic damages resulting from Sterling's violations. Rather, as the record reveals,
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Alkire paid Sterling $40,000 to remodel his house, work that based on Alkire's own expert

witness had a value of approximately $44,000. Alkire, therefore, received a windfall of at

least $4,000 above what he paid Sterling. As defined by R.C. 1345.09(G), "actual economic

damages" means damages for "direct, incidental, or consequential pecuniary losses resulting

from a violation of Chapter 1345. of the Revised Code[.]" In turn, because Alkire failed to

prove he suffered any actual economic damages resulting from Sterling's two violations of

the CSPA, the trial court was correct in awarding Alkire statutory damages of just $400.

Accordingly, Alkire's second assignment of error is also without merit and overruled.

      {¶ 14} Assignment of Error No. 3:

      {¶ 15} THE TRIAL COURT ERRED BY DENYING AN AWARD OF REASONABLE

ATTORNEYS' FEES TO ALKIRE.

      {¶ 16} Assignment of Error No. 4:

      {¶ 17} THE TRIAL COURT ERRED BY FAILING TO STATE A REASONABLE BASIS

FOR DENYING ALKIRE'S APPLICATION FOR ATTORNEYS' FREES.

      {¶ 18} Assignment of Error No. 5:

      {¶ 19} THE TRIAL COURT ERRED BY FAILING TO HOLD A HEARING AND

CALCULATE ATTORNEYS' FEES IN ACCORDANCE WITH THE STANDARDS

ESTABLISHED BY THE SUPREME COURT OF OHIO.

      {¶ 20} In his third, fourth, and fifth assignments of error, Alkire argues the trial court's

decision not to award him attorney fees was improper, thereby requiring this matter be

reversed and remanded for further proceedings. We again disagree.

      {¶ 21} R.C. 1345.09 provides for the award of attorney fees to the prevailing party in

an action brought under the CSPA. Specifically, pursuant to R.C. 1345.09(F):

             The court may award to the prevailing party a reasonable
             attorney's fee limited to the work reasonably performed and
             limited pursuant to section 1345.092 of the Revised Code, if
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              either of the following apply:

              (1) The consumer complaining of the act or practice that violated
              this chapter has brought or maintained an action that is
              groundless, and the consumer filed or maintained the action in
              bad faith;

              (2) The supplier has knowingly committed an act or practice that
              violates this chapter.

       {¶ 22} R.C. 1345.09(F), therefore, "allows the trial court, in its discretion, to award

reasonable attorney fees for either of the aforementioned reasons." Schneble v. Stark, 12th

Dist. Warren Nos. CA2011-06-063 and CA2011-06-064, 2012-Ohio-3130, ¶ 85, citing

Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 29 (1990). Absent an abuse of that discretion,

the trial court's determination of attorney fees will not be disturbed on appeal. Id. An abuse

of discretion is more than an error of judgment; it means the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Whittle v. Davis, 12th Dist. Butler No. CA2012-08-

169, 2013-Ohio-1950, ¶ 13.

       {¶ 23} Although Alkire suggests otherwise, as this court has stated previously, "R.C.

1345.09(F) is permissive, rather than mandatory. Thus, the trial court was not, at any time,

required to award attorney fees to [Alkire]." After a thorough review of the record, we find no

error with the trial court's decision denying Alkire's request for attorney fees, nor do we find

any error by the trial court for not holding a hearing on the same. As noted above, Sterling's

two violations of the CSPA did not result in Alkire suffering any actual economic damages.

Moreover, as evidenced by Alkire's own expert witness, Sterling performed work that resulted

in Alkire receiving a windfall of at least $4,000. Under these circumstances, we simply

cannot say the trial court abused its discretion by finding it would be "unequitable" to award

attorney fees to Alkire.

       {¶ 24} In so holding, we disagree with Alkire's assertion that the trial court's decision

not to award him any attorney fees stands in opposition to the public policy behind the CSPA
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that would somehow "shock the conscience." That is particularly true here considering

Sterling's two violations of the CSPA can be generally attributed to the informal, fluid nature

of the parties' dealings. Furthermore, the fact that the trial court noted the long-standing

personal relationship between Alkire and Kohli, Sterling's owner, does not run afoul of our

decision in Sterling I where we stated that "[t]his court has not found any support for the trial

court's finding that the CSPA does not apply to situations where the consumer and supplier

have a personal relationship or participate in an informal transaction." Id. at ¶ 14. Based on

our decision in Sterling I, the trial court properly applied the relevant portions of the CSPA to

the facts and circumstances of this case. Nothing about the trial court's decision constitutes

an abuse of discretion. Therefore, finding no error in the trial court's decision, Alkire's third,

fourth, and fifth assignments of error are likewise without merit and overruled.

       {¶ 25} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




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