[Cite as Smith v. Mills, 2016-Ohio-664.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Glenda F. Smith,                                 :

                 Plaintiff-Appellant,            :             No. 15AP-571
                                                          (M.C. No. 2014 CVF 25520)
v.                                               :
                                                         (REGULAR CALENDAR)
Mark Mills,                                      :

                 Defendant-Appellee.             :




                                           D E C I S I O N

                                    Rendered on February 23, 2016


                 On brief: Ray J. King, for appellant.

                 On brief: Leo P. Ross, for appellee.

                       APPEAL from the Franklin County Municipal Court

SADLER, J.
        {¶ 1} Plaintiff-appellant, Glenda F. Smith, appeals the May 12, 2015 judgment of
the Franklin County Municipal Court dismissing her contract claim against defendant-
appellee, Mark Mills, with prejudice. For the reasons that follow, we reverse the trial
court's judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On August 4, 2014, appellant filed a complaint in the Franklin County
Municipal Court alleging that during spring and summer 2011 appellee, without
appellant's knowledge and authorization, removed landscaping, yard lights, a pool liner,
and pool pump at appellant's rental property, and that appellee did not perform other
work under an oral agreement for which he was paid. As a result, appellant demanded
damages in the amount of $8,000. The filing cover sheet in the record marks the case as a
No. 15AP-571                                                                                  2


"refiling of a previously dismissed case," and indicates the previous case was "2011 CVI
0344151" assigned to Judge VanDerKarr. (New Civil Case Filing, 1.)
           {¶ 3} Appellee filed an answer and counterclaim on October 1, 2014 alleging
appellant had not paid him for work he performed. As such, appellant demanded $2,850
plus interest and attorney fees.
           {¶ 4} After a trial to the court, the judge granted judgment to appellee and
dismissed the case with prejudice. In doing so, the trial court found an oral contract
existed between the parties but determined that, because there was no evidence of
fraudulent misrepresentation on the part of appellee, appellant failed to prove she is
entitled to rescind the contract. The trial court also held that appellant's "failure to inspect
the work before she paid for it bars her rescission of the contract," and appellant's "failure
to timely seek corrective action from [appellee] prevents her from recovering the cost of
the work," noting she did not exercise her right to rescind within a reasonable time as
"[f]our years have passed." (May 12, 2015 Judgment Entry, 5.) Appellant filed a timely
appeal.1
II. ASSIGNMENTS OF ERROR
           {¶ 5} Appellant assigns two assignments of error for our review:

                    [I.] The trial court erred in stating that Plaintiff-Appellant
                    failed to exercise her right to rescind within a reasonable time
                    since four years have passed. The Judgment Entry is
                    incorrect which improperly contributed to the decision
                    dismissing Plaintiff-Appellant's claims            against    the
                    Defendant-Appellee.

                    [II.] The trial court's Judgment Entry is against the manifest
                    weight of the evidence.

III. DISCUSSION
           A. First Assignment of Error
           {¶ 6} In her first assignment of error, appellant contends the trial court erred in
determining appellant failed to timely exercise her right to rescind the contract within a
reasonable time in the erroneous belief that appellant had waited four years to file her


1   Appellee does not appeal dismissal of his counterclaim.
No. 15AP-571                                                                                 3


complaint. We agree that the court erred on the issue of timeliness, and find that the error
warrants reversal and remand to the trial court in this case.
       {¶ 7} "Whether a party to a contract, after discovering the facts entitling him to
rescind, acted within a reasonable time, is a question for the trier of facts." Cross v.
Ledford, 161 Ohio St. 469, 474 (1954). However, here, it appears the trial court based its
decision regarding the reasonableness of appellant's 2015 action on the belief that four
years passed between the cause of action and appellant's attempt to seek corrective action.
The record before the trial court and on appeal indicates that appellant filed her present
case three years after the cause of action arose and that the case is a refiling of a 2011 case
before the court. Therefore, the fact of four years passing between the contract dispute
and the date of the trial court's decision does not indicate appellant failed to timely pursue
corrective action.
       {¶ 8} Furthermore, the complaint at hand calls for damages. In general, "an
action upon a contract not in writing, express or implied * * * shall be brought within six
years after the cause thereof accrued." R.C. 2305.07. As a result, timeliness should not
prevent appellant's claim, and the trial court erred determining otherwise.
       {¶ 9} Finally, the trial court's discussion regarding timeliness comprises a
considerable and prominent portion of its legal analysis, and is intertwined with the trial
court's reasoning regarding rescission. As such, we cannot say that this is a case where
"avoidance of the error would not change the outcome of the proceedings," but, rather,
find the error in this case warrants reversal. Morgan v. Mikhail, 10th Dist. No. 08AP-87,
2008-Ohio-4598, ¶ 53; App.R. 12.
       {¶ 10} Accordingly, appellant's first assignment of error is sustained.
       B. Second Assignment of Error
       {¶ 11} Appellant's second assignment of error asserts the trial court's judgment is
against the manifest weight of evidence. The disposition of appellant's first assignment of
error renders appellant's second assignment of error moot. App.R. 12(A)(1)(c).
IV. CONCLUSION
       {¶ 12} Having sustained appellant's first assignment of error, and appellant's
second assignment of error being rendered moot, we hereby reverse the judgment of the
No. 15AP-571                                                                            4


Franklin County Municipal Court and remand this matter to that court for further
proceedings in accordance with law, consistent with this decision.
                                                                     Judgment reversed and
                                                                          cause remanded.

                           BROWN and HORTON, JJ., concur.
                              ____________________
