Giffin v. Cohen

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 10th District Court of Appeals » 2011 » Giffin v. Cohen

Giffin v. Cohen

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-5487

Case Date: 10/27/2011

Plaintiff: Giffin

Defendant: Cohen

Preview:[Cite as Giffin v. Cohen, 2011-Ohio-5487.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert E. Giffin [et al.],                                                                  :
Plaintiffs-Appellants,                                                                      :
v.                                                                                          :                                       No. 11AP-360
                                                                                                                                    (M.C. No. 2009 CVF 029120)
Stuart Cohen, dba Buckeye Handyman                                                          :
Services,                                                                                                                           (REGULAR CALENDAR)
                                                                                            :
Defendants-Appellees.
                                                                                            :
D    E    C    I    S    I    O    N
Rendered on October 27, 2011
Robert G. Kennedy, for appellants.
Brendan  Hummer  Law,  LLC,  and  Brendan  Hummer,  for
appellees.
APPEAL from the Franklin County Municipal Court
TYACK, J.
{¶1}   Plaintiffs-appellants,  Robert  E.  Giffin                                           ("Giffin"),  and  Robert  G.  Kennedy
appeal the decisions of the Franklin County Municipal Court.   For the following reasons,
we affirm those decisions.
{¶2}   Giffin assigns the following errors:

No. 11AP-360                                                                          2
I.  The  Trial  Court  Erred  in  Failing  to  Find  the  Contract
Between  Appella[nt]  and  Appellee  was  Subject  to  the
Consumer Sales Practice Act.
II. The Trial Court Erred in Failing to Find Appellee Violated
the Requirements of R.C. 1345.23(A) as Being Part of the
Home  Solicitation  Sales  Act  and  the  Ohio  Administrative
Code Adopted Thereunder, which Under R.C. 1345.28 is a
Violation of R.C.  1345.02 of the Consumer Sales Practice
Act and OAC 109:-4-3-11.
III. The Trial Court Erred in Failing to Award Appellant Triple
Damages as Set Forth in R.C.  §  1345.09(B) as Appellee
Violated  the  Rule  Adopted  by  the  Ohio  Attorney  General
under R.C. § 1345.05(B)(2), or the Appellee's Act Has Been
Determined by a Court to Have Violated R.C. § 1345.02 or
R.C.  §  1345.03. A Copy of the Decision has been Made
Available for Pubic Inspection by the Ohio Attorney General.
IV.   The  Trial  Court   Erred   in   Failure   to   Find   Ohio
Administrative Code  109:4-3-01 Definition of Services and
Therefore Required Appellee to Provide a specific Written
Form  Informing  of  Appellant's  Right  to  an  Estimate  for
Additional Costs as Required by Ohio Administrative code
109:4-3-05.
V.  The  Trial  Court  Erred  in  Finding  There  were  Oral
Modifications  to  the  Contract  by  the  Appellant.  The  Trial
Court  failed   to   consider  the   effects  of   the  Uniform
Commercial Code Section 2-209 (R.C. 1302.12).
VI.  The  Trial  Court  Erred  in  Finding  that  Appellant  and
Appellant's Counsel Engaged in Frivolous Conduct Under
R.C.                                                                                  2323.51(A)(2)(A)(III-IV)  in  their  Prosecution  of  this
Matter.
Facts and Procedures of the Case
{¶3}                                                                                  This case arises from a contract dispute over a basement remodeling.
Giffin contacted appellee Stuart Cohen ("Cohen") doing business as Buckeye Handyman
Service in July 2008 and inquired about hiring Cohen to remodel the basement of his

No. 11AP-360                                                                                      3
residence.   Cohen presented Giffin with a written estimate and contract proposal for the
remodeling project on July 28, 2008.   Both parties negotiated and Giffin signed a revised
contract proposal on August 22, 2008.
{¶4}   The contract included the following language:
Price includes labor for entire job as listed above.
BHS  [Buckeye  Handyman  Service]  will  provide  all  basic
construction  materials  such  as  framing  lumber,  drywall,
electrical  wire,  receptacles,  switches,  fasting  devices  and
countertop steel bracing.
Customer will provide all other materials or reimburse Cohen
for  other  materials  purchased  at  customers  [sic]  request,
including,  but  not  limited  to,  cabinets,  countertops,  base
moldings, casings, switch and outlet covers, recessed lights,
baffles and trim rings.
(Defendant's exhibit No. 9.)
{¶5}   The contract further states that "[a]ny deviation or alteration from above
specifications will be executed only upon written orders and will become an extra charge
above the original estimate."   (Defendant's exhibit No. 9.)
{¶6}   Within  a  few  days  of  Giffin  signing  the  contract,  Cohen  began  the
remodeling project, which he completed on December 10, 2008.   During the course of the
project, changes were made to the original estimate.   These changes were necessitated
by unforeseen circumstances or made at Giffin's request.   These changes resulted in a
total additional cost of $863.   These additional costs were presented to Giffin in a revised
version of the contract.
{¶7}   On December  9,  2008, the day before completion of the project, Giffin
presented Cohen a letter objecting to the additional costs.   In the letter, Giffin stated: "As

No. 11AP-360                                                                                     4
you know I did not sign any change order nor any other document authorizing the
additional charges.   There fore [sic] I do not feel I owe for the [additional] charges[.]"
(Defendant's exhibit No. 23.)
{¶8}   Upon completion of the project on December  10,  2010, Giffin added a
notation at the bottom of the most recent version of the contract, which included a list of
all the additional costs.   The notation, which is positioned below the signature line, reads,
"932.00 Bal. due on completion by 12/10/2008."                                                   (Defendant's exhibit No. 18.)   Cohen
and Giffin both signed the contract beneath this notation.
{¶9}   Giffin then tendered a check for the full balance owed, but had typed on the
back  of  the  check,  "Endorsement  acknowledges  copy  of  Mr.  Giffin  ltr  of  12/09/08."
(Defendant's exhibit No. 5.)  Cohen endorsed and deposited this check into his account.
{¶10}  For each payment made by Giffin, Cohen presented him with an updated
version of the contract that included the date, the amount of payment received, and the
outstanding balance due.
{¶11}  On July 2,  2009, Giffin filed a complaint alleging breach of contract and
violations of Ohio's Consumer Sales Practices Act ("CSPA"), R.C. Chapter 1345.   Giffin
alleged Cohen breached the contract and violated the CSPA by making changes to the
original proposal absent written change orders.   Giffin sought damages of $863 for the
disputed costs, $1,500 to replace drywall on one wall of the basement, and $190 for an
inspection of a replaced gas line damaged during the remodeling.   He further prayed that
these damages be tripled and that he be awarded attorney fees, pursuant to the CSPA.

No. 11AP-360                                                                                      5
Giffin  further  alleged  that  Cohen's  failure  to  produce  receipts  for  additional  items
purchased is also a violation of the CSPA.
{¶12}  Giffin filed an amended complaint on January  12,  2010, in which Giffin
added a count of fraud and/or negligence.    A two-day bench trial was conducted on
June 4, and 18, 2010.   Giffin and Cohen were the only witnesses to testify.   The trial court
found that a valid contract existed and that Cohen did not breach the contract.   The court
also found that Cohen did not violate the CSPA or engage in fraud or negligence.   No
damages were awarded.
{¶13}  The trial court also found Giffin's suit to be without merit and conducted a
hearing to determine if Giffin and his attorney, Robert G. Kennedy ("Kennedy") engaged
in frivolous conduct in the prosecution of the matter.    The trial court found that the
allegation of violation of the CSPA, the allegation of breach of contract, and the allegation
of fraud and/or negligence prosecuted against Cohen were each frivolous under R.C.
2323.51(A)(2)(a)(iii)-(iv).   After a March 2011 hearing, the trial court awarded $12,810
plus interest to Cohen's attorney for which Giffin and Kennedy are jointly and severally
liable.
{¶14}  Giffin timely appealed the trial court's decisions.
First Assignment of Error
{¶15}  The first assignment of error asserts that the trial court erred in failing to find
that the contract between Giffin and Cohen was subject to the CSPA.  The trial court does
not conclude that the contract is not subject to the CSPA.   The trial court actually found

No. 11AP-360                                                                                  6
that Cohen did not violate the CSPA.   Implicit in the trial court's argument is that the
contract is subject to the CSPA.
{¶16}  The first assignment of error is not well-taken and is overruled.
Second, Third, and Fourth Assignments of Error
{¶17}  The second, third, and fourth assignments of error all assert that the trial
court erred in finding that Cohen did not violate some provision of the CSPA.   The CSPA
"prohibits suppliers from committing either unfair or deceptive consumer sales practices
or unconscionable acts or practices as catalogued in R.C.  1345.02 and  1345.03. 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  a  consumer's
understanding of the nature of the transaction at issue."   Hanna v. Groom, 10th Dist. No.
07AP-502, 2008-Ohio-765, ¶33; quoting Johnson v. Microsoft Corp., 106 Ohio St.3d 278,
2005-Ohio-4985,  ¶24.  (Footnote omitted.) See, also, Bungard v. Ohio Dept. of Job &
Family Servs., 10th Dist. No. 07AP-447, 2007-Ohio-6280, ¶11 (describing CSPA and its
purpose).
{¶18}  In determining whether a violation of the CSPA occurred, appellate courts
are guided by the principle that judgments supported by competent, credible evidence
going to all the material elements of the case must not be reversed as being against the
manifest weight of the evidence. Pep Boys v. Vaughn, 10th Dist. No. 04AP-1221, 2006-
Ohio-698, ¶19.

No. 11AP-360                                                                                        7
{¶19}  "Judgments supported by some competent, credible evidence going to all
essential elements of the case will not by reversed by a reviewing court as being against
the manifest weight of evidence."   C.E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio
St.2d  279.    Further, "a reviewing court must be guided by the presumption that the
findings of the trial court are correct, as the trial judge is best able to view the witnesses,
observe  their  demeanor,  gestures,  voice  inflections,  and  use  these  observations  in
weighing the credibility of the proffered testimony."   Griffin v. Twin Valley Psychiatric Sys.,
10th Dist. No. 02AP-744, 2003-Ohio-7024.
{¶20}  The arguments presented by Giffin at trial and alleged in his complaint are
that Cohen committed unconscionable acts and practices in violation of the CSPA: (1) by
charging for work required under the contract but not done; (2) by charging for work not
authorized under the contract; (3) by charging for an additional amount of work that was
to be completed under the contract; and (4) by threatening not to complete work required
by the contract unless Giffin paid additional charges.   The trial court also found that Giffin
developed a CSPA argument at trial based on Cohen's failure to provide receipts for the
additional expenses incurred.
{¶21}  In  the  first  allegation,  Giffin  claims  that  Cohen  charged  him  for  the
installation of drywall even though Cohen did not install half-inch thick drywall on all walls,
as the written contract required.   Contrary to this claim, Cohen did install half-inch thick
drywall on all walls but one, which was the wall with the bi-fold doors.   That change was
made with the full knowledge of Giffin, was made to enhance the appearance of the
project, and did not result in any extra cost.   "It is familiar law that stipulations in written

No. 11AP-360                                                                                   8
contracts may be waived by the parties, and that a construction placed by the parties
upon a written contract in the progress of its performance, with full knowledge of all the
circumstances, will be binding."   Edge Constr. Co., Inc. v. Robert E. Giffin Co., L.P.A.
(Mar. 7 1989), 10th Dist. No. 88AP-1052.
{¶22}  Additionally, at no extra cost, Cohen painted the stairwell to the basement
which was not in the contract.   Cohen performed his contractual duties in a workmanlike
manner and even performed additional work for which he did not charge.    Therefore
Giffin, failed to prove Cohen charged him for work not performed.
{¶23}  In the second and the third allegations, Giffin claims Cohen charged him for
work not included in the contract and for additional work that should have been completed
under the contract.    As discussed above, Cohen performed work not included in the
original contract, but this work resulted from either the requests of Giffin or unforeseen
circumstances.    Furthermore,  Cohen  did  not  charge  any  additional  labor  costs  in
complying with these change orders, except for the additional work necessitated by
Giffin's request to stain and lacquer the bi-fold doors rather than paint them, as the
original contract required.   Giffin assented to these change orders with full knowledge and
without any fraud shown on the part of Cohen.   Therefore, Giffin waived the requirement
that change orders be in writing, and subsequently, these change orders served as valid
modifications of the original contract.
{¶24}  Giffin  also  failed  to  prove  the  fourth  CSPA  allegation.    The  trial  court
determined that Giffin failed to prove that Cohen threatened to walk off the job unless
Giffin immediately paid the additional charges.   The evidence shows that Giffin did not

No. 11AP-360                                                                                    9
tender the remainder of the balance due until Cohen completed the work.   The trial court
found Cohen's testimony to be more credible that he did not threaten to walk off the job.
{¶25}  Lastly, Giffin argued that Cohen's failure to produce receipts for the building
materials he purchased constituted a CSPA violation.   Under R.C.  1345.02 and Ohio
Adm.Code 109:4-3-07(c), the failure of a supplier to produce a receipt for a consumer's
deposit that paid for goods or services is a violation of the CSPA.   The receipt must state
the date, the amount paid, and the remaining balance due.   Giffin did not base his claim
for relief on this CSPA provision.   Giffin instead alleged that Cohen violated the CSPA by
failing to produce receipts for the additional items purchased for the remodeling project.
This argument is unavailing because the CSPA does not require a supplier to produce
receipts for the purchase of all materials required to perform its services.    See R.C.
Chapter 1345 and Ohio Adm.Code 109:4-3.
{¶26}  Even if Giffin alleged that Cohen had violated the CSPA by failing to provide
him with receipts of deposits, that argument would fail as well.   The record of this case
shows that for the payments made by Giffin, Cohen presented him with a dated and
revised  version  of  the  contract,  which  included  the  amount  paid  and  the  remaining
balance.   The trial court's conclusion that Cohen did not violate the CSPA is supported by
competent and credible evidence.
{¶27}  Giffin did not allege that Cohen violated the CSPA under any additional
theories in his pleadings or during trial.    However, Giffin has attempted to introduce
additional arguments that Cohen violated the CSPA at a post-trial hearing to determine

No. 11AP-360                                                                                     10
whether Giffin and Kennedy engaged in frivolous conduct.   Giffin also continues these
arguments within their appellate briefs.  These arguments are not well-taken.
{¶28}  It is well-settled that a litigant's failure to raise an issue before the trial court
waives the litigant's right to raise that issue on appeal.   Ordinarily, errors which arise
during the course of a trial, which are not brought to the attention of the court by objection
or otherwise, are waived and may not be raised upon appeal. Stores Realty Co. v.
Cleveland (1975), 41 Ohio St.2d 41, 43.   Thus, a party cannot raise new issues or legal
theories for the first time on appeal.   Hudson v. P.I.E. Mut. Ins. Co., 10th Dist. No. 10AP-
480, 2011-Ohio-908, ¶12.
{¶29}  Giffin would also fail in an attempted argument of an implied amendment of
pleadings under Civ.R. 15.  Civ.R. 15(B) allows parties to try issues that are not contained
in the pleadings; such can only take place if the parties have expressly or implicitly
consented to the trial of those issues or if no objection to the evidence on such issues is
made.  State ex rel. Evans v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41, 44-46:
1. An implied amendment of the pleadings under Civ.R.
15(B) will not be permitted where it results in substantial
prejudice to a party. Various factors to be considered in
determining whether the parties impliedly consented to
litigate an issue include: whether they recognized that an
unpleaded issue entered the case; whether the opposing
party  had  a  fair  opportunity  to  address  the  tendered
issue or would offer additional evidence if the case were
to  be  tried  on  a  different  theory;  and,  whether  the
witnesses   were   subjected   to   extensive   cross-
examination on the issue.
2. Under Civ.R. 15(B), implied consent is not established
merely  because  evidence  bearing  directly  on  an
unpleaded  issue  was  introduced  without  objection;  it

No. 11AP-360                                                                                      11
must appear that the parties understood the evidence
was aimed at the unpleaded issue.
Id. at syllabus.
{¶30}                                                                                             “  'Whether  an  unpleaded  issue  is  tried  by  implied  consent  is  to  be
determined by the trial court, whose finding will not be disturbed, absent showing of an
abuse of discretion.' ”   Columbus v. Briggs Rd. Shopping Ctr. Corp., 10th Dist. No. 08AP-
537, 2009-Ohio-440, at ¶ 11, quoting Evans at 46.
{¶31}  Giffin alleges, at the post-trial frivolous conduct hearing and in his appellate
briefs,  that  Cohen  violated  the  Ohio  Home  Sales  Solicitation  Act  by  not  providing
statutorily required language regarding a three-day cancellation window.   The trial court
found that Giffin, after having judgment entered against him, searched for some law that
could have posed a colorable argument based on the facts.   The trial court did not find
that these post-trial arguments presented a good-faith basis for Giffin's claim.
{¶32}  The trial court did not abuse its discretion coming to this conclusion that the
unpleaded issues, raised at the post-trial frivolous conduct hearing, were not tried by
implied consent.
{¶33}  Finding it was proper for the trial court to conclude that Cohen did not
violate the CPSA, the second, third, and fourth assignments of error are overruled.
Fifth Assignment of Error
{¶34}  The fifth assignment of error asserts that the trial court erred in finding there
were oral modifications to the contract and that the trial court failed to consider the effects
of the Uniform Commercial Code section 2-209 (R.C. 1302.12).

No. 11AP-360                                                                                  12
{¶35}  As discussed briefly, "It is familiar law that stipulations in written contracts
may be waived by the parties, and that a construction placed by the parties upon a written
contract in the progress of its performance, with full knowledge of all the circumstances,
will be binding. * * * The rule is peculiarly just when applied to building contracts, when
changes are made, the necessity for which develops as the work progresses and while
the parties are intent on the accomplishment of the undertaking, no fraud or undue
advantage being shown."   Edge Constr. Co., Inc., quoting Expanded Metal Fireproofing
Co. v. Noel Constr. Co. (1913), 87 Ohio St. 428, 440.
{¶36}  As Judge Cardozo stated, "[w]henever two men contract, no limitation self-
imposed can destroy their power to contract again."   Beatty v. Guggenheim Exploration
Co. (1919), 225 N.Y. 380, 122 N.E. 378, 381.   Accordingly, it has been held that the
clause itself can be waived by oral agreement like any other term in a contract.   Fahlgren
& Swink, Inc. v. Impact Resources, Inc. (Dec. 24, 1992), 10th Dist. No. 92AP-303.
{¶37}  A non-oral modification contractual clause is waived orally if the waiver is
established by clear and convincing evidence.   Aire-Flo Corp. v. Situation Corp. (Jan. 31,
1991), 10th Dist. No. 89AP-629, at 3.
{¶38}  The trial court found clear and convincing evidence that Giffin engaged in a
course of dealing in which he repeatedly orally approved change orders of which he had
full knowledge.   The trial court concluded that Cohen did not breach the contract by not
obtaining written change orders before making alterations to the original contract.
{¶39}  The trial court's findings are supported by clear and convincing evidence.
Giffin deviated from the terms of the original contract by orally requesting Cohen to stain

No. 11AP-360                                                                                      13
and lacquer rather than paint the bi-fold doors, and to install an additional cabinet.   Giffin
also verbally approved Cohen to order four additional steel braces to accommodate a
style of countertop different from that found in the contract.   Giffin unilaterally purchased
the new countertop.   Giffin approved the cutting and reassembly of a cabinet that did not
fit in the basement.   Giffin also verbally approved the installation of quarter-inch drywall
and non-installation of a door jamb extension to accommodate the lacquering of the bi-
fold doors.   This shows that there was a repeated pattern of oral modification to the
contract and that both parties, with each having full knowledge of all the circumstances,
allowed for the oral modification of the contract.
{¶40}  The fifth assignment of error is overruled.
Sixth Assignment of Error
{¶41}  The sixth assignment of error asserts the trial court erred in finding that
Giffin and Kennedy engaged in frivolous conduct under R.C. 2323.51(A)(2)(a)(iii)-(iv) in
their prosecution of this matter.
{¶42}  R.C.                                                                                       2323.51(B)  provides  that  if  a  party  is  adversely  affected  by  the
frivolous conduct of another, the court may award that party costs, reasonable expenses,
and reasonable attorney fees incurred as a result.   Before awarding attorney fees, a trial
court:
(a) Sets a date for a hearing to be conducted in accordance
with division  (B)(2)(c) of this section, to determine whether
particular conduct was frivolous, to determine, if the conduct
was frivolous, whether any party was adversely affected by it,
and to determine, if an award is to be made, the amount of
that award;

No. 11AP-360                                                                                       14
(b)  Gives  notice  of  the  date  of  the  hearing  described  in
division (B)(2)(a) of this section to each party or counsel of
record  who  allegedly  engaged  in  frivolous  conduct  and to
each party who allegedly was adversely affected by frivolous
conduct;
(c) Conducts the hearing described in division (B)(2)(a) of this
section in accordance with this division allows the parties and
counsel of record involved to present any relevant evidence at
the hearing * * *.
R.C. 2323.51(B)(2)(a) through (c).
{¶43}  The trial court, at the conclusion of trial, gave notice of a hearing date of
August 13, 2010.   The purpose of the hearing was to determine whether or not frivolous
conduct had occurred and/or was a violation of Civ.R. 11 as a result of both Giffin and
Kennedy's actions.    At the hearing, Giffin, Kennedy, and Cohen's attorney, Brendan
Hummer all presented evidence.
{¶44}  The trial decision and the frivolous conduct hearing decision were issued by
the trial court on November  12,  2010, finding that Giffin and Kennedy did engage in
frivolous  conduct  and  awarded  Cohen  costs,  reasonable  expenses,  and  reasonable
attorney fees.  The trial court did not find a violation of Civ.R. 11.
{¶45}  Giffin claimed at oral argument that the purpose of the August 13 hearing
was  unclear,  that  if  the  trial  decision  had  been  released  he  would  have  presented
evidence from his wife who had separate interactions with Cohen.   This argument is
disingenuous.   A review of the trial transcript clearly shows that the trial judge was explicit
as to what issues needed to be resolved and the purpose of  the hearing.    Giffin's
assertion at oral argument as to the purpose of the August 13, 2010 hearing being vague
is not well-taken.

No. 11AP-360                                                                             15
{¶46}  After the November  12 decisions, the trial court set another hearing for
March 10, 2011, with the purpose of determining the reasonable amount of the award.
The trial court awarded $12,810 plus interest based on Mr. Hummer's attorney's fees on
behalf of Cohen.
{¶47}  The trial court followed R.C. 2323.51(B), properly conducted the necessary
hearings and made a proper determination as to whether there was any frivolous conduct
in the prosecution of this case.
{¶48}  The question then remains as to whether there was frivolous conduct.   R.C.
2323.51(A)(2) states, in the relevant part:
"Frivolous conduct” means either of the following:
(a) Conduct of an inmate or other party to a civil action, * * *
or other party's counsel of record that satisfies any of the
following:
(ii)  It  is  not  warranted  under  existing  law,  cannot  be
supported  by  a  good  faith  argument  for  an  extension,
modification,  or  reversal  of  existing  law,  or  cannot  be
supported by a good faith argument for the establishment of
new law.
(iii)  The  conduct  consists  of  allegations  or  other  factual
contentions that have no evidentiary support or, if specifically
so identified, are not likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions
that are not warranted by the evidence or, if specifically so
identified, are not reasonably based on a lack of information
or belief.

No. 11AP-360                                                                                     16
{¶49}  The analysis under R.C. 2323.51 involves a mixed question of law and fact.
Williams Creek Homeowners Assn. v. Zweifel, 10th Dist. No. 07AP-689, 2008-Ohio-2434,
¶83.    In  accordance  with  R.C.  2323.51(A)(1),  the  frivolous  conduct  statute  requires
individual examination of each claim or defense, rather than examination of the complaint
as a whole, to determine whether frivolous conduct exists.   Wiltberger v. Davis (1996),
110 Ohio App.3d 46, 53.
{¶50}  The finding of a trial court for frivolous conduct shall not be overturned
absent a lack of clear and convincing evidence.
{¶51}  The trial court found that Giffin's allegation of breach of contract, violations
of the CSPA, fraud and/or negligence against Cohen constituted frivolous conduct.   The
trial court's findings are supported by competent and credible evidence.
{¶52}  The trial court found that Giffin's and Kennedy's allegations of a breach of
contract were frivolous under R.C.  2323.51(A)(2)(a)(iii)-(iv) as they lacked evidentiary
support.   Evidence at trial clearly demonstrated that Cohen substantially performed his
contractual duties in a workmanlike manner, that any modifications to the original contract
were made either on the request of Giffin or necessitated by unforeseen circumstances,
and that Giffin had full knowledge of the modifications.   Further, Giffin was satisfied with
Cohen's performance, that he retained the full benefit of the contract, and that he did not
incur any ascertainable damages.   The trial court found that Giffin's allegations regarding
his breach of contract claim were devoid of evidentiary support, as were his factual
contentions.   At the August 13, 2010 frivolous conduct hearing, Giffin or Kennedy failed to

No. 11AP-360                                                                                    17
show otherwise.    The trial court's finding that Giffin's allegation of Cohen's breach of
contract was frivolous, is supported by competent and credible evidence.
{¶53}  The trial court's finding that Giffin's allegations that Cohen violated the
CSPA for failure to produce receipts for materials purchased were frivolous is supported
by competent and credible evidence.    The failure to produce such receipts does not
constitute a violation of the CSPA or Ohio Adm.Code 109:4-3.   Giffin offered no specific
authority or colorable argument as to why the failure to produce receipts for materials
purchased is a violation of the CSPA.
{¶54}  Giffin also claimed to bring this action on grounds that Cohen violated the
Ohio Home Sales Solicitation Act.   Giffin did not include this argument in his pleadings or
at trial.   These allegations were made for the first time at the August 13, 2010 post-trial
frivolous conduct hearing.   The trial court does not find this argument presents a good-
faith basis for Giffin's claim.
{¶55}  Giffin's claim that Cohen engaged in fraudulent and/or negligent conduct is
also frivolous.   The trial court found that there was no evidentiary support for Giffin's
allegations and factual contentions.    There is competent and credible evidence that
Cohen performed all his duties under the contract, performed additional work not required
of him, and that any changes made to the contract were done with Giffin's full knowledge
and the parties' mutual approval, and there is no evidence that Cohen sought any unjust
economic advantage over Giffin.  Most importantly, Cohen was continually providing Giffin
with information about the project giving updates and invoicing the additional cost.   It was
proper to find Giffin's claim of fraud and/or negligence as frivolous prosecution of a case.

No. 11AP-360                                                                                   18
{¶56}  The trial court concluded that Giffin's conduct was frivolous as it was based
on denials and factual contentions not supported by the evidence.   The trial court found,
and competent credible evidence shows, that Giffin at first denied any alterations to the
original  contract.    The  evidence,  however,  demonstrated  that  the  changes  that  he
disputes resulted from change orders he either made in writing, requested orally, or
assented to, and that all were done with his knowledge and in the absence of any
fraudulent, unfair, deceptive, or unconscionable activity by Cohen.   The record shows that
Giffin was provided with multiple written updates to the contract listing the alterations, a
final contract signed by Giffin that lists these changes and their prices, and that Giffin
tendered full payment for the work performed.    Therefore, Giffin engaged in frivolous
conduct by filing and prosecuting this action up through trial.
{¶57}  Giffin argues that Cohen was in default of an answer until June 4, 2010 and
therefore interest should be calculated from that day and no attorney fees should be
awarded for work done prior to that day.    No authority for this proposition has been
presented by Giffin and he offers no colorable argument to support his position.
{¶58}  The sixth assignment of error is overruled.
Cohen's Motion for Appellate Attorney Fees and Expenses
{¶59}  Cohen's attorney, Mr. Hummer, has filed a motion with this court arguing
that this appeal is frivolous and that under App.R. 23, this court should award reasonable
attorney fees and expenses.   We do not find this appeal to be frivolous and will not award
additional attorney fees or expenses.

No. 11AP-360                                                                                      19
{¶60}  Giffin has presented six assignments of error.   While Giffin in many of the
assignments of error makes the same arguments he did at trial, the sixth assignment of
error  questions  the  trial court's  determination  of  whether frivolous  conduct  occurred.
While this court upholds the trial court's determination, the question of whether Giffin
committed frivolous  conduct  through  the  trial  phase  is  a  valid  one.    To  appeal  the
determination of that question was not frivolous in this case.
{¶61}  Having  overruled  all  of  the  assignments  of  error,  the  judgment  of  the
Franklin County Municipal Court is affirmed.    The motion for additional fees is also
overruled.
Judgment affirmed;
motion for attorney fees denied.
FRENCH and CONNOR, JJ., concur.

Download 11ap-360.pdf