Kent v. Leo's Ent., L.L.C.

[Cite as Kent v. Leo's Ent., L.L.C., 2021-Ohio-946.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JILL KENT, :
Plaintiff-Appellant, : No. 109730
v. :
LEO’S ENTERPRISE, L.L.C., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 25, 2021
Civil Appeal from the South Euclid Municipal Court
Case No. CVF 1800352
Appearances:
Fanger & Davidson L.L.C., Jeffrey J. Fanger, and Gerry
Davidson, for appellant.
Harvey B. Bruner Co., L.P.A., and Harvey B. Bruner, for
appellees.
SEAN C. GALLAGHER, P.J.:
Plaintiff-appellant Jill Kent (“Kent”) appeals the decision of the trial
court that adopted the magistrate’s decision, over her objections, and granted
judgment in favor of defendants-appellees Leo’s Enterprise, L.L.C., and Anthony
Turner (“Turner”). Upon review, we affirm.
Background
On July 20, 2018, Kent filed an amended complaint that raised claims
against appellees and other defendants for breach of contract and violation of the
Ohio Consumer Sales Practices Act (“CSPA”).1 Kent alleged that on or about July 13,
2017, she entered an oral contract with appellees for tree trimming and removal on
her property, that the parties agreed upon a price of $2,200 cash, and that appellees
failed to complete the work. Kent sought compensatory damages in the amount of
$1,601.25.
Kent filed a motion for summary judgment that was opposed by
appellees. The trial court denied the motion for summary judgment, and the case
proceeded to trial before a magistrate.
Turner testified that when he receives a job, he sends others to do the
work. For Kent’s job, he initially sent Darrell Hutchinson Jr. (“Hutchinson”) of
Hutchinson Lawn Care to assess the work to be done. Turner never went to Kent’s
property. Turner stated that after conferring with Hutchinson and receiving
pictures of the job, he quoted Kent for the tree work. He testified that Kent never
provided a number of trees and there was no written agreement specifying the
1 The other named defendants included Darrin Hutchinson Jr. and Hutchinson
Lawn Care L.L.C., against whom default judgment was obtained in the amount of $6,600;
and Brandon Tree Service and “Unknown Principle [sic]” of Brandon Tree Service, who
later were dismissed for failure to perfect service.
number of trees to be cut down. After initial work was performed by Hutchinson
Lawn Care, Kent contacted Turner to express her dissatisfaction and her refusal to
pay.
According to Turner, the parties reached an agreement that Kent
would pay $2,200 and that the scope of work was to include the removal of a number
of trees on the side of her property up to the air conditioner plus the removal of a
large tree. Kent brought Brandon Tree Service (“Brandon”) onto the job to perform
the work the next day. Turner testified that Kent paid the $2,200 after the work was
completed, that the job was finished, and that he believed Kent was satisfied because
she paid. Turner stated that he took a $100 loss on the job because he owed $2,300
to Hutchinson and Brandon. Turner testified that days later, Kent contacted him
and told him there were additional trees she wanted cut down. Turner quoted Kent
$1,200 for the additional tree work. No further payment was made, and no
additional tree work was performed.
The evidence at trial revealed that prior to contacting Turner, Kent
received an estimate from Anywhere Tree Service for the removal of 15 trees and a
large pine for approximately $3,200. According to Kent, after contacting Turner,
Hutchinson came to look around and they discussed the work that needed to be
done. She claimed this was the same work she had quoted by Anywhere Tree Service
and included cutting flush to the ground a very large pine tree and trees along the
side of her house back to her neighbor’s garage, and trimming back trees over her
driveway that were hitting her roof. She testified that Hutchinson took pictures of
the trees she wanted cut down that were sent to Turner. She testified that Turner
gave her a quote of $2,200, which included $700 for the large pine tree and $1,500
for the rest of the work. Kent conceded during her testimony that she never told
appellees a specific number of trees she wanted cut down and there was never any
written proposal from appellees.
Kent testified that after her initial dissatisfaction, she agreed to pay
$2,200 for the trees to be cut flush to the ground, the removal of the large pine tree,
and trimming. She confirmed that she exchanged text messages with Turner. She
testified that Brandon cut down the large tree on her property and several trees on
the side of the house back to the air conditioning unit, which was “maybe 10 trees.”
Kent further claimed that when she made the $2,200 payment, the
job was not completed. She testified that she contacted Turner and asked about the
rest of the trees. Kent testified that Turner asked her to pay the money and he would
send someone out the next week. She stated that because Brandon had done “a good
portion of the work,” she paid the $2,200 for the whole job with the understanding
that they would be back the following week “to finish the rest of the trees and then
trim on the side of my driveway.” Kent stated that her daughter wrote on a receipt
the work that was left to be done and that Hutchinson signed this receipt.
Photographs were introduced that depicted a very large pine tree on
the property and several trees along the side of the house. Copies of text messages
exchanged by the parties, requests for payment, a receipt, and estimates were also
introduced. The text messages show that after the initial work was completed by
Hutchinson Lawn Care, Kent expressed her dissatisfaction. Turner stated his desire
to get everything straightened out the following day. The next morning, he sent a
message to Kent stating that “Brandon will be over * * * today to finish the job cut
down the big tree in the front and all the ones that he didn’t cut down yesterday
$2,200 when the job is finished.” Kent agreed. Several days later, Kent sent a
message to Turner asking who would be there to finish the job, including “[t]he rest
of the trees on right side of the house and cutting back the tree over the house and
drive on the left side?” Turner responded that the additional trees were not included
in the original job and that the additional tree work would be another $1,200. Kent
insisted the job was not completed and claimed that when the $2,200 was paid she
understood they would be back the following week to complete the job. Turner
continued to express that the additional tree work was not part of the parties’
agreement, stating “there’s been a misunderstanding Hutchinson cut down a bunch
of trees three truckloads full that was [$]1,500 you would not pay him Brandon cut
down the big tree I charge you $700 you would not pay you said $2,200 * * *.” The
requests for payment Kent received from Hutchinson Lawn Care reflected a price of
$2,200 for the work that had been performed. There was a notation from Kent on
a receipt regarding work left to be done. There also was an estimate from Anywhere
Tree Care for $1,601.25 for the work Kent claims remained to be finished.
On April 30, 2019, the magistrate issued a decision finding in favor of
appellees. Kent filed objections to the magistrate’s decision and a request for
findings of fact and conclusions of law. The trial court ordered the parties to submit
proposed findings of fact and conclusions of law, and the parties complied. On
January 24, 2020, the magistrate issued findings of fact and conclusions of law that
stated as follows: “The Court accepts and incorporates in part and rejects in part
portions of the Parties’ proposals.” Although the magistrate did not specify which
parts of the proposals were accepted or rejected, the magistrate included his own
findings and conclusions “based on the evidence submitted at trial and the
credibility of the witnesses” that stated in part:
That the $2,200 paid by Plaintiff to Defendant was the extent to which
there was a contractual obligation and a meeting of the minds and thus
the contract covered. There was no meeting of the minds and thus no
contract for the additional tree removal work performed subsequent to
the initial contract, and thus Plaintiff is not entitled to any damages.
Kent filed supplemental objections to the magistrate’s decision. On
April 7, 2020, upon review and consideration of the matter, the trial court approved
the magistrate’s decision and adopted the recommendations therein, over Kent’s
objections. The trial court rendered judgment in favor of appellees.
Kent timely filed this appeal.
Law and Analysis
Kent raises twelve assignments of error for our review. We shall
address them out of order and group them together as conducive to our analysis.
Kent’s tenth and twelfth assignments of error challenge the trial
court’s findings of fact and conclusions of law. Under her tenth assignment of error,
Kent claims the trial court erred by not properly setting forth findings of fact and
conclusions of law and violated Civ.R. 52 and her due process rights by failing to
specifically list the “incorporated” findings of fact and conclusions of law. Under her
twelfth assignment of error, Kent claims the trial court’s failure to include any
findings of fact and conclusions of law on the CSPA claim is plain error.
“[A] magistrate’s decision may be general unless findings of fact and
conclusions of law are timely requested by a party or otherwise required by law.”
Civ.R. 53(D)(3)(a)(ii). “‘[I]f a magistrate has not prepared findings of fact * * *, the
burden is on the party objecting to request findings of fact from the magistrate
pursuant to Civ.R. 52 and Civ.R. 53(D)(3)(a)(ii).’” Foster v. Foster, 10th Dist.
Franklin No. 15AP-1157, 2017-Ohio-4311, ¶ 60, quoting Casper v. Casper, 12th Dist.
Warren No. CA2012-12-128, 2013-Ohio-4329, ¶ 39. When a timely request is made,
the magistrate may require any or all of the parties to submit proposed findings of
facts and conclusions of law. Civ.R. 53(D)(3)(a)(ii); see also Civ.R. 52.
The purpose of separate findings of fact and conclusions of law is “‘to
aid the appellate court in reviewing the record and determining the validity of the
basis of the trial court’s judgment.’” In re Adoption of Gibson, 23 Ohio St.3d 170,
172, 492 N.E.2d 146 (1986), quoting Werden v. Crawford, 70 Ohio St.2d 122, 124,
435 N.E.2d 424 (1982). “Ohio courts have determined that when a magistrate’s
decision substantially complies with Civ.R. 53, in the absence of prejudice, the
failure to issue additional findings of fact and conclusions of law is not reversible
error.” Slosser v. Supance, 10th Dist. Franklin No. 20AP-15, 2021-Ohio-319, ¶ 13,
quoting In re Citywide Ambulance Servs., Inc. v. Ohio Dept. of Human Servs., 10th
Dist. Franklin No. 96APE08-1119, 1997 Ohio App. LEXIS 1551 (Apr. 17, 1997). When
the contents of the magistrate’s decision, considered with the rest of the record,
forms an adequate basis to decide the issues presented on appeal, it substantially
complies with Civ.R. 53(D)(3)(a)(ii). Id. at ¶ 14-15. The same holds true when
findings of fact and conclusions of law are made by a trial court pursuant to Civ.R.
52. See Ferrari v. Ohio Dept. of Mental Health & Mental Retardation, 69 Ohio
App.3d 541, 545, 591 N.E.2d 284 (10th Dist.1990).
In this case, the magistrate issued a general decision that granted
judgment in favor of appellees on all claims. Kent timely requested findings of fact
and conclusions of law, the trial court required the parties to submit proposed
findings of fact and conclusions of law, and the magistrate issued a decision that
substantially complied with Civ.R. 53(D)(3)(a)(ii). Although no specifics were
provided regarding the accepted portions of the parties’ proposals, the magistrate
proceeded to set forth findings and conclusions that were determinative in the
matter. The magistrate found “the $2,200 paid by Plaintiff to Defendant was the
extent to which there was a contractual obligation and a meeting of the minds and
thus the contract covered.” Further, the magistrate found “there was no meeting of
the minds and thus no contract for the additional tree removal work performed
subsequent to the initial contract, and thus Plaintiff is not entitled to any damages.”
Thereafter, Kent filed supplemental objections. The trial court, upon its review and
consideration of the matter, adopted the magistrate’s decision over Kent’s objections
and entered judgment for appellees.
Our review reflects that the magistrate’s decision substantially
complied with Civ.R. 53(D)(3)(a)(ii), and we find that additional findings of fact and
conclusions of law were not necessary. Kent fails to cite any authority to show that
a due process violation occurred. The trial court’s decision, when considered with
the rest of the record, forms an adequate basis for our review. Therefore, no
reversible error occurred. Kent’s tenth and twelfth assignments of error are
overruled.
Under her first, second, third, sixth, eighth, and eleventh assignments
of error, Kent challenges the trial court’s judgment on her breach of contract claim.
Kent claims the judgment is against the manifest weight of the evidence and
challenges the trial court’s findings, or implicit findings, that a contract did not exist
between the parties, that a meeting of the minds had not occurred, that appellees
were not in breach of contract, and that Kent was not harmed by the breach. Kent
also claims that the trial court abused its discretion by not properly determining the
factual issues in dispute and that the trial court did not appropriately apply the law
to the facts of the case.
The Supreme Court of Ohio has stated that the standard of review for
manifest weight in a criminal case, which was set forth in State v. Thompkins, 78
Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, also applies in a civil case.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. In
conducting a review on manifest weight, the 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 such a manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Moreover, this court must
make every reasonable presumption in favor of the trial court’s judgment and
findings of facts and, if the evidence is susceptible of more than one construction,
we must give it that interpretation which is consistent with the trial court’s
judgment. Eastley at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984), fn. 3.
“‘Essential elements of a contract include an offer, acceptance,
contractual capacity, consideration * * *, a manifestation of mutual assent and
legality of object and of consideration.’” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-
Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436
F.Supp. 409, 414 (N.D.Ohio 1976). “‘A meeting of the minds as to the essential terms
of the contract is a requirement to enforcing the contract.” Rayess v. Educational
Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983
N.E.2d 1267, ¶ 19, quoting Kostelnik at ¶ 16. Furthermore, “to be enforceable, ‘the
contract must be definite and certain.’” Id., quoting Episcopal Retirement Homes
v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991).
In this case, the trial court found that the parties had an oral contract
for the tree work that was performed, but never had an enforceable contract for the
additional tree work that Kent claims appellees failed to complete. Turner’s
testimony was that Kent agreed to pay $2,200 for the removal of trees along the side
of her property plus a large pine tree on the property. The text messages show that
Kent agreed to the work and that payment was to be made when the job was finished.
The record also shows that ten trees and the large pine tree were removed and the
requests for payment from Hutchinson Lawn Care set forth the work that was
completed for the price of $2,200. Kent paid the $2,200 after this work was
completed. Appellees maintained that they did not agree to remove any additional
trees.
Although Kent claims it was her understanding that the parties’ oral
contract was for all of the trees and that the additional tree work was within the
scope of the contract, she never told appellees the specific number of trees she
wanted cut down and there was never any written proposal specifying the number
of trees. We also recognize the written estimate that Kent received from Anywhere
Tree Service for the removal of fifteen trees, the large pine, and trim work was for
$3,202.50, which was $1,000 more than she paid for the work that was performed,
and the estimate for the work that Kent claimed was unfinished was for $1,601.25.
The record further shows that Turner quoted Kent $1,200 for the
additional work, which included five trees. When Kent inquired with Turner about
the rest of the work, Turner informed Kent that there had been a misunderstanding
regarding the additional tree work. The record demonstrates there was no meeting
of the minds with regard to the additional tree work. Also, the fact that Kent’s
daughter made a notation regarding work to be performed on a receipt signed by
Hutchinson does not establish that the additional tree work was within the scope of
the parties’ oral contract, nor did this constitute the formation of a new contract.
In conducting our review, we must make every reasonable
presumption in favor of the trial court’s judgment and findings of facts. See Eastley
132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 21. In doing so, we agree
that the additional tree work was not covered by the parties’ oral contract and that
the parties never subsequently entered an enforceable contract for the additional
tree work. Moreover, the record reflects that there was no meeting of the minds or
a definite and certain contract for the additional tree work. Therefore, no breach
occurred and Kent is not entitled to damages. After reviewing the entire record,
weighing the evidence and all reasonable inferences, and considering the credibility
of witnesses, we do not find the trial court clearly lost its way in resolving conflicts
in the evidence and created such a manifest miscarriage of justice that the judgment
must be reversed and a new trial ordered.
Finally, we find no merit to Kent’s remaining challenges regarding her
claim for breach of contract. Our review reflects that the trial court properly
determined the factual issues and that the trial court appropriately applied the law
to the facts of the case. The trial court explicitly found a meeting of the minds existed
as to the contract for $2,200 made between the parties, which was the extent of any
contractual obligation, but the court found there was no meeting of the minds and
no contract existed as to the additional tree work requested by Kent. The trial court
never determined, as Kent suggests, that a partial meeting of the minds existed.
That Kent disagrees with the findings and conclusions of the trial court does not
mean that the trial court erred.
Accordingly, the assignments of error relating to the claim for breach
of contract are overruled.
Under her fourth, fifth, seventh, and ninth assignments of error,
appellant challenges the trial court’s judgment on her claim that appellees were in
violation of the CSPA, R.C. 1435.01 et seq. Kent claims that the trial court’s
judgment on the CSPA claim was against the manifest weight of the evidence and
challenges the implicit findings that appellees were not in violation of the CSPA and
that Kent was not harmed by the alleged violation. Kent also claims that the trial
court abused its discretion by not properly applying the law to the facts of the case
and by failing to properly determine the factual issues in dispute.
“The CSPA prohibits unfair or deceptive acts and unconscionable acts
or practices by suppliers in consumer transactions whether they occur before,
during, or after the transaction.” Williams v. Spitzer Autoworld Canton, L.L.C., 122
Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410, ¶ 10, citing R.C. 1345.02(A) and
1345.03(A). “In general, the CSPA defines ‘unfair or deceptive consumer sales
practices’ as those that mislead consumers about the nature of the product they are
receiving, while ‘unconscionable acts or practices’ relate to a supplier manipulating
the consumer’s understanding of the nature of the transaction at issue.” Johnson v.
Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 24.
The record in this case does not support a finding that any violation
of the CSPA occurred. The record reflects that appellees provided an oral estimate
for tree work upon Kent’s request and made a good faith effort to resolve the issues
with Turner when she expressed her dissatisfaction. The parties agreed upon a price
that was to be paid when the work was finished. The work that was agreed to by the
parties was completed, and Kent paid the $2,200. The record does not support
Kent’s claim that appellees made misleading statements about the scope of the work.
Kent confirmed she never told appellees the number of trees she wanted cut down
and there was no written proposal specifying the number of trees. The record also
demonstrates that the parties never entered an enforceable contract for the
additional tree work. Appellees quoted Kent $1,200 for the additional tree work,
which was consistent with the other estimates Turner received. Also, Turner’s
statement that there was a misunderstanding and his position that appellees were
not obligated to perform the additional work were not false or deceptive statements
or unconscionable acts. See Heisler v. Mallard Mechanical Co., L.L.C., 10th Dist.
Franklin No. 09AP-1143, 2010-Ohio-5549, ¶ 28.
Our review reflects no violation of the CSPA occurred, Kent was not
entitled to damages on this claim, and the trial court’s judgment in favor of appellees
on her CSPA claim was not against the manifest weight of the evidence. We also find
no merit to Kent’s remaining challenges regarding her CSPA claim. Kent’s
assignments of error relating to her claim for violation of the CSPA are overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
EILEEN A. GALLAGHER, J., CONCUR