DeFoe v. Schoen Builders, L.L.C. , 2019 Ohio 2255 ( 2019 )


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  • [Cite as DeFoe v. Schoen Builders, L.L.C., 2019-Ohio-2255.]
    IN THE COURT OF APPEALS OF OHIO
    SIXTH APPELLATE DISTRICT
    WOOD COUNTY
    John DeFoe, et al.                                        Court of Appeals No. WD-18-031
    Appellants                                        Trial Court No. 2015CV0475
    v.
    Schoen Builders, LLC, et al.                              DECISION AND JUDGMENT
    Appellees                                         Decided: June 7, 2019
    *****
    James P. Sammon, for appellants.
    Shannon J. George and John J. McHugh, for appellees.
    *****
    SINGER, J.
    {¶ 1} This case is before the court on the appeal of appellants, John DeFoe and
    Jodie DeFoe, from the February 20, 2018 judgment of the Wood County Court of
    Common Pleas granting summary judgment to appellees, Schoen Builders, LLC (“SB”)
    and Aaron Schoen (“Schoen”), on most of appellants’ claims. For the reasons that
    follow, we reverse, in part, and affirm, in part, the trial court’s judgment.
    Appellants’ Assignment of Error
    The Trial Court erred in denying Appellants/Plaintiffs’ Motion for
    Reconsideration and affirming its decision granting summary judgment to
    Defendants/Appellees because there was no genuine issue of material fact
    as to Counts I-V and Counts VII-VIII.
    Relevant Background Facts and Procedural History
    {¶ 2} This case involves a dispute between appellants, who are husband and wife,
    and appellees, Schoen and SB.
    {¶ 3} On January 18, 2013, appellants entered into a Standard Building Contract
    (“the contract”) with SB, for the construction of a custom home (“the home”) for
    appellants by SB. The contract provided the home would be completed no later than
    October 24, 2013, for an all-in price of $623,317. Appellants moved into the home in
    April 2014, and paid over $1.3 million for the home.
    {¶ 4} On September 1, 2015, appellants filed their complaint. On October 9,
    2015, appellants filed a nine-count amended complaint against appellees.1 In the
    amended complaint, appellants alleged: (Count 1) breach of contract against SB; (Count
    2) the contract should be rescinded; (Count 3) negligence by SB; (Count 4) breach of
    warranty by SB; (Count 5) breach of warranties/breach of duty to perform in a
    workmanlike manner by SB; (Count 6) violations of the Consumer Sales Practices Act
    1
    Additional parties were named in the amended complaint and other claims were alleged,
    but those parties and allegations are not before us.
    2.
    (“CSPA”) by Schoen; (Count 7) fraudulent misrepresentation by Schoen; (Count 8) fraud
    against Schoen; and (Count 9) negligent infliction of emotional distress (“NIED”) by
    appellees.
    {¶ 5} Appellees filed an answer to the amended complaint as well as
    counterclaims against appellants. Appellees also filed third-party complaints against
    numerous parties.2
    {¶ 6} On June 1, 2017, appellees moved for summary judgment on all counts of
    the amended complaint. Appellants filed a response on June 27, 2017. On February 20,
    2018, the trial court granted summary judgment to appellees on all of the counts except
    Count 6, CSPA, and Count 9, NIED.
    {¶ 7} On February 22, 2018, Schoen filed a motion to dismiss, with prejudice, the
    CSPA count for lack of standing. Schoen claimed the contract involved a home
    construction service contract, as defined under R.C. 4722.01, which was not a consumer
    transaction as defined in R.C. 1345.01(A) of the CSPA.
    {¶ 8} On March 6, 2018, appellants filed a reply to the motion to dismiss, which
    included a motion to amend the complaint to allow appellants to bring actions under R.C.
    4722.01 et seq., and a motion for reconsideration of the court’s ruling granting summary
    judgment to appellees on Counts 1 through 5 of the amended complaint.
    2
    All of these claims were settled, dismissed or otherwise disposed of by appellees, and
    are not relevant to this appeal.
    3.
    {¶ 9} On March 15, 2018, the trial court granted Schoen’s motion to dismiss the
    CSPA count, but allowed appellants seven days to file a motion to amend to assert a
    claim under R.C. Chapter 4722, and denied the motion for reconsideration.
    {¶ 10} On March 16, 2018, appellants filed a “Notice of Voluntary Dismissal of
    Remaining Claims in Amended Complaint,” dismissing, without prejudice, Count 9
    (NIED) of the amended complaint, and moving the court for an order, pursuant to Civ.R.
    54(B), to enter a final judgment on all issues.
    {¶ 11} Also on March 16, 2018, appellees filed a notice of voluntary dismissal,
    without prejudice, of their counterclaims against appellants.
    {¶ 12} On April 4, 2018, the court entered a final judgment finding no just reason
    for delay, as all claims and issues were dismissed or adjudicated. Appellants appealed
    the February 20, 2018 judgment granting summary judgment to appellees on Counts 1
    through 5, 7 and 8 of the amended complaint.3
    Final Appealable Order
    {¶ 13} Appellees contend appellants did not appeal from a final, appealable order,
    despite the Civ.R. 54(B) language in the April 4, 2018 final judgment. In support,
    appellees cite to Pattison v. W.W. Grainger, Inc., 
    120 Ohio St. 3d 142
    , 2008-Ohio-5276,
    
    897 N.E.2d 126
    , ¶ 1, where the Supreme Court of Ohio held:
    3
    Appellants did not appeal the trial court’s March 15, 2018 judgment granting Schoen’s
    motion to dismiss Count 6, the CSPA count.
    4.
    when a plaintiff has asserted multiple claims against one defendant, and
    some of those claims have been ruled upon but not converted into a final
    order through Civ.R. 54(B), the plaintiff may not create a final order by
    voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claims
    against the same defendant.
    {¶ 14} Courts of appeals have jurisdiction to “affirm, modify, or reverse
    judgments or final orders of the courts of record inferior to the court of appeals within the
    district.” Ohio Constitution, Article IV, Section 3(B)(2). Therefore, “an order must be
    final before it can be reviewed by an appellate court. If an order is not final, then an
    appellate court has no jurisdiction.” Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio
    St.3d 17, 20, 
    540 N.E.2d 266
    (1989).
    {¶ 15} “An order of a court is a final, appealable order only if the requirements of
    both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met.” Chef Italiano Corp. v. Kent
    State Univ., 
    44 Ohio St. 3d 86
    , 
    541 N.E.2d 64
    (1989), syllabus. When determining
    whether a judgment is final, the appellate court must engage in a two-step analysis. Gen.
    Acc. Ins. Co. at 21. First, the court must determine if the order is final within the
    requirements of R.C. 2505.02. 
    Id. If the
    order complies with R.C. 2505.02 and is final,
    the court must then decide if Civ.R. 54(B) language is necessary. 
    Id. {¶ 16}
    R.C. 2505.02(B)(1) provides in relevant part that an order is final if it
    “affects a substantial right in an action that in effect determines the action and prevents a
    judgment.” A substantial right is “a right that the United States Constitution, the Ohio
    5.
    Constitution, a statute, the common law, or a rule of procedure entitles a person to
    enforce or protect.” R.C. 2505.02(A)(1). “A court order which deprives a person of a
    remedy which he would otherwise possess deprives that person of a substantial right.”
    Chef Italiano at 88. A party’s right to enforcement and performance of a contract
    involves a substantial right. Niehaus v. Columbus Maennerchor, 10th Dist. Franklin No.
    07AP-1024, 2008-Ohio-4067, ¶ 19.
    {¶ 17} Civ.R. 54(B) states “[w]hen more than one claim for relief is presented in
    an action * * * or when multiple parties are involved, the court may enter final judgment
    as to one or more but fewer than all of the claims or parties only upon an express
    determination that there is no just reason for delay.”
    Analysis
    {¶ 18} The trial court granted summary judgment to appellees on Counts 1
    through 5, 7 and 8 of the amended complaint, then granted appellees’ motion to dismiss
    Count 6. Thereafter, appellants filed a notice of voluntary dismissal of their remaining
    claim, Count 9, and appellees voluntarily dismissed their counterclaims. The court then
    issued a final judgment finding no just reason for delay. Appellants appealed.
    {¶ 19} At the outset, we find appellants’ notice of voluntary dismissal of Count 9
    of the amended complaint was improper in light of the ruling in Pattison, 
    120 Ohio St. 3d 142
    , 2008-Ohio-5276, 
    897 N.E.2d 126
    . Thus, Count 9 remains pending before the trial
    court. See Ningard v. Shin Etsu Silicones, 9th Dist. Summit No. 24524, 2009-Ohio-3171,
    ¶ 6-7.
    6.
    {¶ 20} As to whether we have jurisdiction to hear this appeal, we find the trial
    court’s February 20, 2018 judgment, granting summary judgment to appellees on Counts
    1-5, 7 and 8 of the amended complaint, affected appellants’ substantial rights as the
    judgment deprived them of remedies they would otherwise possess. We therefore find
    this judgment complies with R.C. 2505.02, and is a final order.
    {¶ 21} Next, we must determine if Civ.R. 54(B) applies, and if so, if its
    requirements were met. In the trial court’s April 4, 2018 judgment, the court found “the
    multiple claims and issues set forth by the parties have been dismissed and/or
    adjudicated. The Court further finds that there is no just reason for delay.” We note
    Civ.R. 54(B) language is not necessary in a judgment entry to make that order final and
    appealable when no claims remain pending before the trial court. However, since we
    determined appellants’ dismissal of Count 9 of the amended complaint was improper and
    that claim remains pending before the trial court, we find Civ.R. 54(B) applies. We
    further find the trial court’s determination that there was no just reason for delay was
    correct, albeit for the wrong reason. See Reynolds v. Budzik, 
    134 Ohio App. 3d 844
    , 846,
    
    732 N.E.2d 485
    (6th Dist.1999), fn. 3, citing Agricultural Ins. Co. v. Constantine, 
    144 Ohio St. 275
    , 284, 
    58 N.E.2d 658
    (1944) (a decision which achieves the correct result
    must be followed, even if the wrong reasoning or basis is used to justify the decision).
    We therefore find the trial court complied with Civ.R. 54(B).
    {¶ 22} Accordingly, we conclude there is a final judgment and we have
    jurisdiction to hear this appeal. See Foley v. Empire Die Casting Co., 9th Dist. Summit
    7.
    No. 24558, 2009-Ohio-5539, ¶ 4 (although a count of the complaint remained pending,
    the trial court’s judgment included the requisite language pursuant to Civ.R. 54(B) to
    confer jurisdiction on the appellate court jurisdiction to consider the merits of the appeal);
    Rutledge v. Lilley, 9th Dist. Lorain No. 09CA009691, 2010-Ohio-2275, ¶ 3, fn. 1 (the
    purported dismissal was ineffective, but because the trial court included Civ.R. 54(B)
    language in its order, the pending claims do not deprive the appellate court of
    jurisdiction).
    Appellants’ Assignment of Error
    {¶ 23} We will first address appellants’ assignment of error with respect to the
    trial court’s decision to grant summary judgment to appellees on Counts 1 through 5, 7
    and 8 of the amended complaint. Some counts will be analyzed together, and some
    counts will be reviewed out of order.
    Standard
    {¶ 24} We review a summary judgment decision on a de novo basis. Grafton v.
    Ohio Edison Co., 
    77 Ohio St. 3d 102
    , 105, 
    671 N.E.2d 241
    (1996). Thus, we undertake
    our own independent examination of the record and make our own decision as to whether
    the moving party is entitled to summary judgment. Dupler v. Mansfield Journal, 64 Ohio
    St.2d 116, 119-120, 
    413 N.E.2d 1187
    (1980).
    {¶ 25} Summary judgment is appropriate when (1) no genuine issue as to any
    material fact exists, (2) the party moving for summary judgment is entitled to judgment
    as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving
    8.
    party, reasonable minds can reach only one conclusion, and that is adverse to the
    nonmoving party. Civ.R. 56; Harless v. Willis Day Warehousing Co., 
    54 Ohio St. 2d 64
    ,
    66, 
    375 N.E.2d 46
    (1978).
    {¶ 26} “The moving party bears the initial responsibility of informing the trial
    court of the basis for the motion, and identifying those portions of the record before the
    trial court which demonstrate the absence of a genuine issue of fact on a material element
    of the nonmoving party’s claim.” Dresher v. Burt, 
    75 Ohio St. 3d 280
    , 292, 
    662 N.E.2d 264
    , (1996). In addition, “summary judgment may be rendered where the pleadings and
    the arguments of the party seeking summary judgment clearly establish that the
    nonmoving party has no legally cognizable cause of action.” 
    Id. at 297-298.
    “When a
    motion for summary judgment is made and supported as provided in this rule, an adverse
    party may not rest upon the mere allegations or denials of the party’s pleadings.” Civ.R.
    56(E).
    Count 1—Breach of Contract, Count 4—Breach of Warranty
    {¶ 27} In Count 1 of the amended complaint, appellants alleged they had a binding
    agreement with SB which required SB to “perform the work according to the
    specifications identified” by appellants, and SB failed to meet its contractual obligations.
    {¶ 28} In Count 4, appellants alleged they “notified Schoen of the multiple
    problems with the Construction * * * and indicated that much of the repairs would fall
    under the warranty issued to them by Schoen Builders.” Appellants alleged SB refused
    9.
    to repair the major items and such refusal is a breach of the warranty issued to appellants
    by SB.
    Law
    {¶ 29} To constitute a valid contract, there must be a meeting of the minds of the
    parties, there must be an offer by one party and an acceptance by the other party, and the
    contract must be supported by consideration. Mike McGarry & Sons, Inc. v. Constr.
    Resources One, LLC, 2018-Ohio-528, 
    107 N.E.3d 91
    , ¶ 90 (6th Dist.), citing Noroski v.
    Fallet, 
    2 Ohio St. 3d 77
    , 
    442 N.E.2d 1302
    (1982). Whether a contract exists is a question
    of law. Motorists Mut. Ins. Co. v. Columbus Fin., Inc., 
    168 Ohio App. 3d 691
    , 2006-
    Ohio-5090, 
    861 N.E.2d 605
    , ¶ 7 (10th Dist.).
    {¶ 30} It is an elementary principle that any law relating to a contract which is in
    existence at the time of the execution of the contract becomes a part of the contract.
    Eastern Mach. Co. v. Peck, 
    161 Ohio St. 1
    , 6-7, 
    117 N.E.2d 593
    (1954). It is also
    “elementary that no valid contract may be made contrary to statute, and that valid,
    applicable statutory provisions are parts of every contract.” Bell v. N. Ohio Tel. Co., 
    149 Ohio St. 157
    , 158, 
    78 N.E.2d 42
    (1948).
    {¶ 31} “In construing a written instrument, the primary and paramount objective is
    to ascertain the intent of the parties so as to give effect to that intent.” Aultman Hosp.
    Assn. v. Community Mut. Ins. Co., 
    46 Ohio St. 3d 51
    , 53, 
    544 N.E.2d 920
    (1989). The
    contract must be reviewed as a whole, and it is presumed that the intent of the parties is
    reflected in the language of the contract. 
    Id. Common words
    appearing in a contract will
    10.
    be given their ordinary meaning unless manifest absurdity would result, or unless some
    other meaning is clearly evident from the face or contents of the contract. Alexander v.
    Buckeye Pipeline Co., 
    53 Ohio St. 2d 241
    , 
    374 N.E.2d 146
    (1978), paragraph two of the
    syllabus. When terms of a contract are unambiguous, courts will not, in effect, create a
    new contract by finding an intent not expressed in the clear language employed by the
    parties. Shifrin v. Forest City Ent., Inc., 
    64 Ohio St. 3d 635
    , 
    597 N.E.2d 499
    (1992),
    syllabus. “If a contract is clear and unambiguous, then its interpretation is a matter of law
    and there is no issue of fact to be determined.” Inland Refuse Transfer Co. v. Browning-
    Ferris Industries of Ohio, Inc., 
    15 Ohio St. 3d 321
    , 322, 
    474 N.E.2d 271
    (1984).
    {¶ 32} The elements of a breach of contract action are “the existence of a contract,
    performance by the plaintiff, breach by the defendant, and damage or loss to the
    plaintiff.” (Citations omitted.) Firelands Regional Med. Ctr. v. Jeavons, 6th Dist. Erie
    No. E-07-068, 2008-Ohio-5031, ¶ 19.
    Arguments
    {¶ 33} In their motion for summary judgment, appellees argued the contract
    entered into between appellants and SB included paragraph 5, which is unambiguous, and
    states:
    5. Possession. Both Contractor and Owner agree that occupancy
    shall be given Owner only upon, and not until payment of the total contract
    price, plus all amounts due Contractor for all changes or additions, have
    been paid to Contractor as provided for in paragraph 3.
    11.
    {¶ 34} Appellees asserted it was undisputed appellants took possession of the
    home before making final payment to SB, which triggered paragraph 5 of the contract.
    They maintained “[a] nearly identical contract term was previously addressed” in
    Kott v. Gleneagles Professional Builders & Remodelers, Inc., 
    197 Ohio App. 3d 699
    ,
    2012-Ohio-287, 
    968 N.E.2d 593
    (6th Dist.), where the court found “[p]ursuant to the
    plain terms of the parties’ contracts, the act of occupancy prior to full payment constitutes
    acceptance of the property and relieves [the Contractor] of further obligation.” 
    Id. at ¶
    13. As a result, the contractor was entitled to judgment on the owner’s “breach of
    contract claim as concerns any purported substandard material or workmanship.” 
    Id. Appellees submitted
    a similar result should be reached here, as appellants “are barred
    from bringing a breach of contract claim against SB” and “any claims for breach of
    warranty are likewise invalid,” so appellees were entitled to summary judgment on the
    breach of contract and breach of warranty claims.
    {¶ 35} In response, appellants countered the contract language is not clear and
    unambiguous and the allegation that appellants “obtained ‘occupancy’ of the residence
    subject to para. 5 of the contract belies the very facts of this case.” Appellants suggested
    there exists a question of fact as to whether they “at this very moment – maintain legal
    occupancy of the residence” because appellees failed to obtain anything other than a
    temporary occupancy permit. Appellants contended any arguments by appellees as to
    paragraph 5 “are null and void” as the contract terms “have yet to be fulfilled.”
    Appellants further argued they “have provided evidence of a myriad of breaches” by
    12.
    appellees and “the evidence is clear that [appellees’] construction of the residence
    contained numerous latent defects.”
    {¶ 36} Appellants further asserted Kott is distinguishable and should not be
    followed. Appellants argued that at the time they entered into the contract with SB, “the
    interpretation set forth in Kott [was] no longer valid as the requirements of R.C. 4722.01,
    et seq., * * * now dictate the parameters of a home construction service contract.”
    Appellants contended appellees’ proposed action, under paragraph 5, is a violation of
    R.C. 4722.03(A)(4). Appellants also claimed “[t]he parameters of R.C. 4722.08 allows
    for this very cause of action to continue against [appellees] and summary judgment to be
    denied * * * [as] R.C. 4722.08(F) specifically states that ‘Nothing in this section shall
    preclude an owner from proceeding with a cause of action under any theory of law.’”
    {¶ 37} In addition, appellants submitted the contract is unconscionable, and “[a]s
    it relates to the ‘effect’ that this Court should give [appellants’] moving into the home
    and then paying the final amount to [appellees],” it is procedurally unconscionable to
    construe the contract terms to prohibit appellants from bringing a cause of action for
    latent defects and other issues prior to making final payment. Appellants argued their
    “situation represents a situation of procedural impossibility on behalf of [appellants]. In
    April 2014, their home has taken almost six (6) months longer than contracted for and
    they * * * literally have no place to go.” Appellants also maintained the contract terms
    are not commercially reasonable.
    13.
    {¶ 38} In reply, appellees asserted the contract was clear and not unconscionable.
    Appellees argued, with respect to R.C. 4722.03(A)(4), that appellants “failed to identify
    any violations of R.C. Chapter 4722 in their Amended Complaint but still attempt to rely
    on the language of the statute to avoid judgment. That notwithstanding, the performance
    of the contract was not made contingent on [appellants] waiving their right to a warranty
    for work performed.” Appellees further submitted “R.C. 4722.08 outlines remedies
    available to owners for violations of the statute” and appellants’ “conclusion [concerning
    R.C. 4722.08(F)] misinterprets that statute and does not impact the award of summary
    judgment” because “the plain meaning * * * reveals * * * common law claims to proceed
    in addition to any violations of the statute.”
    Analysis
    {¶ 39} We must first determine whether a valid, binding contract existed between
    appellants and SB.
    {¶ 40} The record shows appellants alleged, in their amended complaint, they had
    a binding agreement with SB, and appellants attached a copy of the contract to the
    amended complaint. Appellees, in their answer to the amended complaint, admitted
    appellants “entered into a contract for construction of a new residence by [SB], but state
    that the contract speaks for itself.” However, in their response to the motion for summary
    judgment, appellants asserted, for the first time, that the contract was unconscionable.
    Unconscionability of a contract is an affirmative defense. Busch, Inc. v. Bailey Dev.
    Corp., 6th Dist. Lucas No. L-83-297, 1984 Ohio App. LEXIS 9011, at *11 (Feb. 3,
    14.
    1984). A party may not rebut a motion for summary judgment by raising a new
    affirmative defense in its opposition to summary judgment. Stanwade Metal Prods. v.
    Heintzelman, 
    158 Ohio App. 3d 228
    , 2004-Ohio-4196, 
    814 N.E.2d 572
    , ¶ 22 (11th Dist.).
    See also Mills v. Whitehouse Trucking Co., 
    40 Ohio St. 2d 55
    , 
    320 N.E.2d 668
    (1974),
    syllabus. Affirmative defenses, other than those listed in Civ.R. 12(B), are waived if not
    raised in the pleadings or in an amended pleading. Jim’s Steak House v. City of
    Cleveland, 
    81 Ohio St. 3d 18
    , 20, 
    688 N.E.2d 506
    (1998). Since appellants did not set
    forth the affirmative defense of unconscionability in a pleading, the defense is waived
    and will not be considered. We therefore find, based on the evidence in the record, a
    valid, binding contract existed between appellants and SB.
    {¶ 41} Next, we will address appellees’ argument that paragraph 5 of the contract
    is unambiguous and appellants took possession of the home before making final payment.
    Appellants countered that a question of fact exists as to whether they obtained occupancy
    and “maintain legal occupancy of the residence.”
    {¶ 42} Paragraph 5 provides in relevant part “[b]oth Contractor and Owner agree
    that occupancy shall be given Owner only upon, and not until payment of the total
    contract price.” And, “[t]aking possession of the above-described property by the Owner
    prior to payment in full to the Contractor as aforesaid shall be complete acceptance by the
    Owner without any further obligation * * * of the Contractor to give the warranty
    provided for in paragraph 12.”
    15.
    {¶ 43} Upon review, the term “possession” is not defined in the contract, so we
    look to the common meaning and usage. The dictionary definitions of “possession”
    include “the act of having or taking into control” and “control or occupancy of property
    without regard to ownership.” Merriam-Webster, https://www.merriam-webster.com/
    dictionary/possession (accessed Apr. 1, 2019). We find “possession,” as used in the
    context of paragraph 5, is unambiguous. The issue raised by appellants of whether they
    obtained occupancy or maintain legal occupancy in the home does not render the term
    “possession” ambiguous. Thus, when applying the common and ordinary definition of
    “possession” to the record before us, we find appellants took possession of the home over
    Easter weekend, in April 2014, when they moved their belongings and children into the
    home to live. This finding comports with the allegation in appellants’ amended
    complaint that “Schoen turned over possession of the home to [appellants] on April 18,
    2014.” We further find appellants took possession of the home before they made their
    final payment to SB on May 9, 2014.
    {¶ 44} Last, we will consider appellees’ argument that appellants’ possession of
    the home before final payment triggered paragraph 5 of the contract, which entitled
    appellees to summary judgment on the breach of contract and warranty claims on the
    authority of Kott, 
    197 Ohio App. 3d 699
    , 2012-Ohio-287, 
    968 N.E.2d 593
    . Appellants
    countered Kott was no longer valid because R.C. 4722.01 et seq. applied. Appellants
    claimed “[t]he very actions proposed by [appellees] in their Motion for Summary
    Judgment – that their service contract (Para. 5) somehow limits or makes contingent
    16.
    [appellants’] ability to obtain services for warranty issues once they move into the home
    would be an express violation of R.C. 4722.[03(A)(4)].”
    {¶ 45} In Kott, the relevant clause of the contracts stated “[o]ccupancy of the
    dwelling by the Owners prior to payment in full to the Contractor aforesaid shall
    constitute complete acceptance by the Owners without any further obligation on the part
    of the Contractor, except that the Owner and Contractor may agree to earlier occupancy.”
    
    Id. at ¶
    12. The owner moved into the home in October 2007, but did not make the final
    payment until February 2008. 
    Id. at ¶
    13. The court held “[p]ursuant to the plain terms
    of the parties’ contracts, the act of occupancy prior to full payment constitutes acceptance
    of the property and relieves [the Contractor] of further obligation.” 
    Id. The court
    found
    the contractor was entitled to judgment on the owner’s “breach of contract claim as
    concerns any purported substandard material or workmanship.” 
    Id. {¶ 46}
    R.C. 4722.03(A)(4) provides “[n]o home construction service supplier shall
    do any of the following: * * * [m]ake the performance of any home construction service
    contingent upon an owner’s waiver of any rights this chapter provides[.]”
    {¶ 47} Upon review, Kott was decided in January 2012, R.C. Chapter 4722
    became effective on August 31, 2012, and the contract was executed on January 18,
    2013. We therefore find the applicable provisions of R.C. Chapter 4722 apply to the
    parties’ contract. See Eastern Mach. 
    Co., 161 Ohio St. at 6-7
    , 
    117 N.E.2d 593
    ; 
    Bell, 149 Ohio St. at 158
    , 
    78 N.E.2d 42
    . However, we find paragraph 5 of the contract does not
    violate R.C. 4722.03(A)(4), as appellants have not identified any rights, under R.C.
    17.
    Chapter 4722, that they, as owners, must waive in order for SB, the supplier, to perform a
    service. Likewise, we find the clause in Kott does not violate R.C. 4722.03(A)(4). Thus,
    we find the holding in Kott remains valid.
    {¶ 48} In Kott, the scope of the relevant clause is very broad (“occupancy * * *
    prior to payment in full * * * shall constitute complete acceptance by the Owners without
    any further obligation on the part of the Contractor”), whereas the scope of paragraph 5
    of the contract is much more limited (“possession * * * prior to the payment in full * * *
    shall be complete acceptance by the Owner without any further obligation on the part of
    the Contractor to give the warranty provided for in paragraph 12.”). The warranty in
    paragraph 12 states in relevant part: “[t]he Contractor shall repair or replace any
    defective materials in accordance with the procedures outlined in the Toledo Home
    Builders Standard Warranty.” Therefore, we find paragraph 5 of the contract precludes
    any claim by appellants based on the warranty contained in paragraph 12 of the contract.
    We note this interpretation of paragraph 5 is much narrower than that advanced by
    appellees.
    {¶ 49} With respect to appellants’ contention that R.C. 4722.08 allows their cause
    of action to continue, R.C. 4722.08 states “[f]or a violation of Chapter 4722. of the
    Revised Code, an owner has a cause of action and is entitled to relief as follows:
    * * * (F) [n]othing in this section shall preclude an owner from ALSO proceeding with a
    cause of action under any theory of law.” (Emphasis added.) We find the statute clearly
    provides an owner with a cause of action for a violation of R.C. Chapter 4722, as well as
    18.
    a cause of action under any theory of law. We therefore find the language of the statute
    does not support appellants’ interpretation. We further find appellants are not entitled to
    the relief available under R.C. 4722.08, as they have not pled a cause of action for a
    violation of R.C. Chapter 4722.
    {¶ 50} Accordingly, we find appellees are entitled to summary judgment on
    appellants’ breach of contract claim (Count 1) and breach of warranty claim (Count 4)
    only to the extent those counts seek the remedies provided for in the warranty in
    paragraph 12 of the contract, for appellees to repair or replace any defective materials.
    Count 3—Negligence, Count 5—Breach of Warranties
    {¶ 51} In Count 3, appellants alleged SB owed them a duty “to perform the
    Construction with reasonable care and in accordance with generally acceptable
    construction industry standards.” In Count 5, appellants alleged SB owed them a duty “to
    construct their home in a workmanlike manner.”
    {¶ 52} In their summary judgment motion, appellees argued paragraph 5 of the
    contract also warrants summary judgment for them on Counts 3 and 5 as paragraph 5
    states appellants “occupying the property prior to final payment constitutes ‘complete
    acceptance’ and relieves [SB] of any further obligations to provide a warranty.”
    Appellees asserted the plain language of paragraph 5 releases SB “from any further
    obligations regarding its workmanship or the requirement to provide any warranty
    repairs” to appellants. Appellees further argued “any claims for negligent workmanship
    sound in negligence and must be treated as such. * * * Since [appellants] accepted the
    19.
    residence in its condition upon moving in as stated in the contract, any claims for
    negligence are invalid against [appellees].” In support, appellees cited to Velotta v. Leo
    Petronzio Landscaping, Inc., 
    69 Ohio St. 2d 376
    , 379, 
    433 N.E.2d 147
    (1982).
    {¶ 53} Appellants countered the professional engineering report of Larry Fast
    includes “innumerable examples of the failure of [appellees] to perform to the standards
    required – i.e., in a workmanlike manner * * * [and] reasonable minds could conclude the
    implied duty was breached.” Appellants cite to numerous cases including Kishmarton v.
    William Bailey Constr., Inc., 
    93 Ohio St. 3d 226
    , 
    754 N.E.2d 785
    (2001) and Seff v.
    Davis, 10th Dist. Franklin No. 03AP-159, 2003-Ohio-7029.
    Law
    {¶ 54} The Velotta case involved an action by an owner against a builder of an
    already constructed residence for damages caused by the builder’s failure to construct the
    residence in a workmanlike manner using ordinary care. Velotta at paragraph one of the
    syllabus. By contrast, the court in Kishmarton held “[w]here the vendee [owner] and
    builder-vendor enter into an agreement for the future construction of a residence, the
    vendee’s claim for breach of an implied duty to construct the house in a workmanlike
    manner arises ex contractu [out of the contract].” 
    Id. at paragraph
    one of the syllabus.
    “Workmanlike manner is a standard that requires a construction professional to act
    reasonably and to exercise that degree of care which a member of the construction trade
    in good standing in that community would exercise under the same or similar
    circumstances.” Seff at ¶ 19.
    20.
    Analysis
    {¶ 55} Upon review, appellees relied on the language of paragraph 5 of the
    contract and the holding in Kott, in support of their motion for summary judgment on
    appellants’ negligence and breach of warranties claims. We find this reliance inadequate
    to sustain their burden of establishing that appellants have no legally cognizable claims
    for negligence or breach of warranties to construct the home in a workmanlike manner.
    Since appellees failed to prove they were entitled to judgment as a matter of law on these
    counts, it was not necessary for appellants to offer evidence sufficient to present a
    genuine issue of material fact, yet appellants did so.
    {¶ 56} Accordingly, the trial court erred in granting summary judgment to
    appellees on Counts 3 and 5 of the amended complaint.
    Count 2—Rescission
    {¶ 57} In Count 2, appellants alleged as a direct and proximate result of Schoen’s
    poor workmanship and breach of contract, the home is not habitable and cannot be used
    for its intended purpose. Appellants alleged they are entitled to rescind the contract with
    Schoen.4
    {¶ 58} In the motion for summary judgment, appellees argued appellants alleged
    “they are entitled to rescission of the Contract with Schoen Builders.” Appellees
    observed “[t]he sole basis identified by [appellants] for the right to rescind the contract
    4
    We note appellants entered into the contract with SB, not Schoen.
    21.
    * * * [are] allegations [that] constitute either a breach of contract claim or a negligence
    claim for the failure to perform in a workmanlike manner. Neither of these claims are
    valid.”
    Law
    {¶ 59} Rescission of a contract “‘amounts to the unmaking of a contract, an
    undoing of it from the beginning, and not merely a termination * * *.’ Black[’]s Law
    Dictionary (5 Ed. Rev. 1979), 1174.” Admiral Holdings, LLC v. Adamany, 8th Dist.
    Cuyahoga No. 87870, 2006-Ohio-6945, ¶ 6. For a court to order the rescission of a
    contract, the court must conclude a breach exists which is so substantial and fundamental
    that it goes to the root of the contract. 
    Id. “Generally, without
    fraud, duress, undue
    influence, or mistake, one party to a contract cannot rescind or cancel it without the
    consent of the other party.” 
    Id. Analysis {¶
    60} Upon review, we find appellees’ argument, that they are entitled to
    summary judgment because appellants’ claims for breach of contract and negligence for
    the failure to perform in a workmanlike manner are not valid, is insufficient to sustain
    their burden of establishing that appellants have no legally cognizable claim for
    rescission. The argument presumes appellants’ breach of contract and negligence claims
    are “not valid,” which is not accurate.
    {¶ 61} As set forth above, we found the breach of contract claim (Count 1) was
    “not valid” only to the extent that count seeks the remedies provided for in the warranty
    22.
    in paragraph 12 of the contract, for appellees to repair or replace any defective materials.
    Thus, the breach of contract claim remains pending except as it pertains to or seeks the
    remedies provided in paragraph 12. We also found appellants’ negligence claim (Count
    3), was “valid” and remains pending because appellees failed to sustain their burden of
    establishing that appellants have no legally cognizable claim for negligence.
    {¶ 62} Since appellees did not meet their burden of demonstrating appellants have
    no legally cognizable claim for rescission, we find the trial court erred in granting
    summary judgment to appellees on Count 2 of the amended complaint.
    Count 7—Fraudulent Misrepresentation, Count 8—Fraud
    {¶ 63} In Count 7, appellants alleged Schoen made certain representations to them
    which were material to the contract and the home’s construction, were knowingly false or
    were reckless, were made with the intent to mislead, and were relied upon by appellants.
    {¶ 64} In Count 8, appellants alleged Schoen “indicated to a third party contractor
    that he should charge [appellants] higher amounts on the Project because they had plenty
    of money and could pay it.” Appellants further alleged Schoen advised, promised and
    deceived them that the material and workmanship of the home “was being done in
    accordance within the standards of the building industry.” Appellants alleged Schoen’s
    false statements and promises “were undertaken as a method to continue to fraudulently
    receive payment under the building contract.”
    23.
    Law
    {¶ 65} A claim of fraud requires proof of the following elements: (1) a
    representation or, where there is a duty to disclose, concealment of a fact, (2) which is
    material to the transaction, (3) made falsely, with knowledge of its falsity, or with such
    utter disregard and recklessness as to its truth or falsity that knowledge may be inferred,
    (4) with the intent of misleading another to rely on it, (5) justifiable reliance upon the
    representation or concealment, and (6) a resulting injury proximately caused by the
    reliance. Russ v. TRW, Inc., 
    59 Ohio St. 3d 42
    , 49, 
    570 N.E.2d 1076
    (1991). Whether or
    not fraud exists is generally a question of fact. Interstate Gas Supply, Inc. v. Calex Corp.,
    10th Dist. No. 04AP-980, 2006-Ohio-638, ¶ 84.
    Arguments and Analysis
    {¶ 66} Schoen argued, in the motion for summary judgment, that appellants
    cannot show they relied on any statements he made for purposes of entering into the
    contract. Schoen contended appellants’ allegations of fraud are based on his
    representations that: he would have a project manager and a selections coordinator to
    assist appellants during construction; the home would be built according to appellants’
    specifications; and, the construction would be of a higher quality than what was
    delivered. Schoen observed other allegations of fraud alleged by appellants included
    that: he suggested third-parties charge appellants more for their services; he continued to
    make false statements during construction to obtain payments from appellants; and his
    24.
    marketing materials, which indicated he had been in business for 30 years and had
    customer testimonials, were fraudulent.
    {¶ 67} Schoen maintained appellants were unable to show his statements
    regarding a project manager or selections coordinator were false, and since there was no
    definition of the role of a project manager or selections coordinator on which appellants
    could have relied, there could be no fraud. Schoen also asserted appellants were unable
    to confirm any of the information in the marketing materials was false. In support,
    Schoen cited to appellants’ deposition testimony.
    {¶ 68} In response, appellants mentioned four examples of fraud in appellees’
    marketing materials and cited to Schoen’s deposition testimony as well as their own
    testimony in support. Appellants contended they acted as the project manager, they never
    had a selections coordinator and Schoen told a painter to overcharge appellants. In
    support, appellants cited to their own deposition testimony.
    {¶ 69} A review of the record, including all of the deposition transcripts and
    exhibits, shows questions of fact exist as to whether Schoen committed fraud or made
    fraudulent misrepresentations as alleged by appellants in Counts 7 and 8 of the amended
    complaint. We therefore find genuine issues of material fact remain.
    {¶ 70} Accordingly, the trial court erred in granting summary judgment in favor of
    appellees on Counts 7 and 8 of the amended complaint.
    25.
    Conclusion
    {¶ 71} Appellants’ assignment of error, with respect to the trial court’s decision to
    grant summary judgment to appellees, is well-taken as to Counts 2, 3, 5, 7 and 8, and
    well-taken, in part, as to Counts 1 and 4 of the amended complaint. This determination
    renders moot appellants’ assertion that the trial court erred in denying their motion for
    reconsideration. See App.R. 12(A)(1)(c).
    {¶ 72} The February 20, 2018 judgment of the Wood County Court of Common
    Pleas is affirmed, in part, and reversed, in part, and the case is remanded for further
    proceedings consistent with this decision. Appellants and appellees are ordered to split
    the costs of this appeal pursuant to App.R. 24.
    Judgment affirmed, in part,
    and reversed, in part.
    A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
    See also 6th Dist.Loc.App.R. 4.
    Arlene Singer, J.                                 _______________________________
    JUDGE
    Thomas J. Osowik, J.
    _______________________________
    Gene A. Zmuda, J.                                             JUDGE
    CONCUR.
    _______________________________
    JUDGE
    This decision is subject to further editing by the Supreme Court of
    Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
    version are advised to visit the Ohio Supreme Court’s web site at:
    http://www.supremecourt.ohio.gov/ROD/docs/.
    26.