[Cite as Helton v. U.S. Restoration & Remodeling, Inc., 2016-Ohio-1232.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Manitou Helton, : 

 

 Plaintiff-Appellant, : No. 14AP-899 

 (C.P.C. No. 11CV-12873) 

v. : 

 (REGULAR CALENDAR) 

U.S. Restoration & Remodeling, Inc. : 

c/o Joshua Kanode, SA et al., 

 : 

 Defendants-Appellees. 

 : 

 

D E C I S I O N 

Rendered on March 24, 2016 

 

On brief: Kevin O'Brien & Associates Co., L.P.A., Kevin J.

O'Brien, and Jeffrey A. Catri, for appellant. Argued:

Kevin J. O'Brien. 

On brief: Tyack, Blackmore, Liston & Nigh Co., L.P.A., 

James P. Tyack, and Ryan L. Thomas, for appellees. 

Argued: James P. Tyack. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This is an appeal by plaintiff-appellant, Manitou Helton, from a judgment of 

the Franklin County Court of Common Pleas overruling his objections to a magistrate's 

decision and adopting the magistrate's decision finding appellant was entitled to 

judgment in the amount of $600 against defendant-appellee, U.S. Restoration and 

Remodeling, Inc. ("U.S. Restoration"), and further granting judgment in favor of 
No. 14AP-899 2 

defendant-appellee, Daniel L. Sechriest ("Sechriest"), on appellant's claims against him 

individually. 

{¶ 2} On October 14, 2011, appellant and his wife, Christy Helton, filed a 

complaint, naming as defendants U.S. Restoration, Sechriest, Joshua Kanode, and 

Karen T. Chumley. The complaint, which alleged that appellant and his wife had 

contracted with U.S. Restoration for goods and services related to appellant's roof, set 

forth causes of action for fraud, slander of title, and violations of the Home Solicitation 

Sales Act ("HSSA") as well as the Ohio Consumer Sales Practices Act ("CSPA"). On 

November 21, 2011, appellees filed an answer and counterclaim. In the counterclaim, 

appellees alleged causes of action for breach of contract, unjust enrichment, and quantum 

meruit. 

{¶ 3} On December 2, 2011, appellant and his wife filed a petition for Chapter 13 

Bankruptcy in the United States Bankruptcy Court, Southern District of Ohio. The trial 

court subsequently issued an order to stay the case. On October 16, 2012, the trial court 

reactivated the case. 

{¶ 4} On March 15, 2013, appellees filed a motion for partial summary judgment, 

which appellant opposed by memorandum contra. By decision and entry filed July 19, 

2013, the trial court granted in part and denied in part appellees' motion for partial 

summary judgment, and dismissed from the case Christy, as well as defendants Kanode 

and Chumley. 

{¶ 5} The trial court referred the matter to a magistrate for a bench trial on the 

claims. On July 24, 2013, appellees filed a motion in limine to exclude certain evidence, 

including evidence as to any settlements or agreed consent judgments involving 

Mastergard, Inc. ("Mastergard"), Sechriest and/or U.S. Restoration, and any 

investigations or consumer complaints filed with the office of the Ohio Attorney General 

("attorney general"). On July 30, 2013, the attorney general filed objections to, and a 

motion to quash, a subpoena served by appellant on the custodian of records for the 

attorney general. Prior to trial, the magistrate ruled that evidence as to an agreed consent 

judgment entered between the attorney general and Mastergard in 2010 was not relevant 

to the instant proceedings. 
No. 14AP-899 3 

{¶ 6} The matter came for trial before the magistrate beginning July 31, 2013. 

The following background facts are drawn from the magistrate's findings of fact as well as 

the record of proceedings. Appellant and his wife reside in a home located at 1779 

Rivermont Road, Columbus; appellant purchased the home in 2002 for $81,000. U.S. 

Restoration is a corporation owned by Sechriest. Following a hail storm in April 2010, 

U.S. Restoration contacted homeowners in appellant's neighborhood to determine 

whether they had suffered hail damage to their roofs. 

{¶ 7} On May 8, 2010, appellant met with Andrew Turner, an independent 

contractor who worked for U.S. Restoration; the parties scheduled the meeting to discuss 

the possibility of installing a new roof on appellant's residence due to storm damage. 

According to appellant, Turner "believed that they could give me a free roof and my 

insurance would pay the entire amount." (Tr. Vol. II, 45.) During the meeting, appellant 

and Turner discussed and agreed to a document, referred to as the "insurance allowance 

agreement," which both Turner and appellant signed. (Tr. Vol. II, 56.) The insurance 

allowance agreement provided for U.S. Restoration to assist the homeowner with the 

insurance claim; the final contract price was to be the final price agreed to between the 

homeowner's insurance company and U.S. Restoration, "at no cost to the homeowner." 

Under the terms, U.S. Restoration agreed to install dimensional shingles on the roof. The 

parties left blank a space on the document for designation of a shingle color. 

{¶ 8} Appellant testified that he was "very adamant" during discussions with 

Turner that he wanted shingles in the "desert tan" color because the existing shingles were 

that same color, and the new shingles would match the siding; further, appellant believed 

this color was widely available, and that obtaining replacement shingles would be easy. 

(Tr. Vol. II, 46.) Appellant testified that Turner indicated U.S. Restoration would be able 

to obtain shingles in that color. 

{¶ 9} During that meeting, appellant and Turner contacted appellant's insurer, 

American Family Insurance ("American Family" or "insurer"), to discuss opening a claim 

and initiating the process of obtaining the insurer's approval for the work. Appellant 

stated that the "main goal was for [Turner] to get with my insurance company to make 

sure that we could get funding." (Tr. Vol. II, 50.) Appellant's insurer scheduled a date 

and time for an adjustor to come to appellant's residence and inspect the roof. 
No. 14AP-899 4 

{¶ 10} Appellant testified that Turner did not discuss with him the right to cancel 

the agreement, nor did Turner provide him with written notice of a right to cancel during 

the meeting on May 8. At trial, appellant identified "Exhibit E" as a written notice of right 

to cancel form containing his signature dated May 8, 2010. Appellant denied having seen 

exhibit E prior to his deposition; he acknowledged, however, that his signature was on the 

exhibit document. The notice of right to cancel provided that appellant had three 

business days to cancel the transaction, and that he could exercise the right by sending 

notice by May 12, 2010. Turner testified that it was his practice to explain the notice of 

right to cancel form with the customer, and to provide the customer with two copies of the 

document. The magistrate deemed Turner's testimony more credible on this issue, and 

concluded that appellant received oral notice of the right to cancel as well as two copies of 

the notice of cancellation form. 

{¶ 11} According to appellant's testimony, Turner represented that the company 

would complete the work within two weeks; appellant acknowledged, however, that he 

was aware insurance approval would take time. During his testimony, Turner stated that 

he would not have made such a promise because U.S. Restoration could not perform any 

work until the insurer gave approval. 

{¶ 12} Turner met with an insurance adjustor at appellant's residence several days 

after the May 8 meeting, and the adjustor conducted an inspection of the roof; according 

to Turner, the roof had significant damage from the recent hail storm, as well as older 

damage. Appellant testified that Turner showed him areas on the roof that appeared to be 

pitted and damaged, and appellant believed the roof was damaged. 

{¶ 13} The adjustor submitted a recommendation to American Family, and the 

insurance company authorized payment in the amount of $6,678.70 toward replacement 

of the roof. On May 16, 2010, American Family issued the first of two checks to appellant 

for the roof work; the first check was in the amount of $2,108.84. On June 10, 2010, 

Turner went to appellant's residence, and appellant and his wife both signed the check 

over to U.S. Restoration. 

{¶ 14} On July 20, 2010, Turner called U.S. Restoration to inquire as to the time 

frame for the roof work; he spoke with Chumley, the company's office manager. Chumley 

subsequently phoned appellant and informed him that the insurer had not agreed to pay 
No. 14AP-899 5 

for upgrades to comply with current building codes, including new sheathing and 

snow/ice shields. Chumley also told appellant that U.S. Restoration was unable to obtain 

desert tan shingles. 

{¶ 15} Following his conversation with Chumley, appellant spoke with his insurer 

who informed him that the policy did cover building code upgrades. Appellant contacted 

Sechriest with that information and, during this conversation, Sechriest informed 

appellant that U.S. Restoration was having difficulty obtaining desert tan shingles. 

According to appellant, Sechriest assured him they would "look into it and they should be 

able to get what I need." (Tr. Vol. II, 86.) Appellant testified that Sechriest phoned him 

on July 30, 2010, and informed him that U.S. Restoration had acquired the desert tan 

shingles and would begin work the next day. 

{¶ 16} Sechriest testified that U.S. Restoration attempted to obtain desert tan 

shingles and he identified exhibit K as his handwritten material order sheet. The supplier 

contacted Sechriest and reported they did not have desert tan in stock, but that they had a 

color "identical to desert tan." (Tr. Vol. III, 132.) Sechriest authorized the order and paid 

for it on July 24, 2010. 

{¶ 17} On July 31, 2010, a subcontractor of U.S. Restoration performed the roofing 

work. That evening, appellant returned home from work and noticed that the roof cap 

was desert tan, but the rest of the roof was a darker color. Appellant phoned Sechriest, 

who then drove to appellant's residence to inspect the roof. Appellant told Sechriest that 

he was unhappy with the color. 

{¶ 18} On August 20, 2010, American Family issued a second check to appellant in 

the amount of $4,569.86, but appellant made no further payment to U.S. Restoration at 

that time. On August 30, 2010, appellant met with Sechriest to discuss a resolution of the 

issues relating to the work. Appellant told Sechriest he was still not happy with the color; 

appellant also told Sechriest he had learned the insurer paid for re-roofing of the shed and 

a gutter downspout, but that this work was not completed. 

{¶ 19} Both appellant and Sechriest testified that they agreed to a resolution of the 

issues. Specifically, because of appellant's dissatisfaction with the color, the parties 

agreed that appellant would receive a credit of $1,000 against the amount due and owing, 

i.e., appellant would pay $3,569.86 rather than the full amount of proceeds ($4,569.86) 
No. 14AP-899 6 

from the second insurance check. The magistrate cited testimony by appellant 

acknowledging that he gave up on the issue of shingle color as part of the resolution. 

{¶ 20} The parties also agreed that U.S. Restoration would replace the roof cap to 

match the shingles and would drop off shingles for the shed but would not perform the 

gutter and downspout work. Accordingly, appellant and Sechriest executed a written 

addendum, dated August 30, 2010, reflecting that U.S. Restoration would install only the 

roof cap, drop off 2.66 square feet of shingles for the shed, and also provide the roof cap 

for the shed. Appellant was obligated to pay for the project in full ($3,569.86) upon 

completion and delivery. 

{¶ 21} Sechriest testified that U.S. Restoration replaced the roof cap and delivered 

the shingles for the shed on October 7, 2010. Appellant and Sechriest met on that date; 

during the meeting, appellant indicated he was still unhappy with the color of the roof 

cap, and he refused to make payment. 

{¶ 22} According to Sechriest, the replacement roof cap and shingles were a closer 

match to the roof, but not a perfect match; Sechriest testified that the dimensional 

shingles have natural color variations as part of their design, making it difficult to find an 

exact color match. After this meeting with appellant, Sechriest contacted a number of 

suppliers in an effort to find shingles for the roof cap that were a closer match to the roof; 

Sechriest subsequently found what he believed to be the closest match possible. 

{¶ 23} On December 29, 2010, appellant and Sechriest met again and negotiated 

another resolution of the dispute. Appellant had already cashed the second insurance 

check in the amount of $4,569.86, and the parties agreed that appellant would pay U.S. 

Restoration $2,000 at that time; appellant would then make three payments of $250 each 

on February 1, March 1, and April 1, 2011, respectively, reflecting an additional credit to 

appellant of $819.86 against the amount due under the August 30, 2010 addendum. 

Appellant gave Sechriest a check in the amount of $2,000 during the meeting on 

December 29, 2010. Sechriest testified that the parties agreed the balance owed under the 

August 30 addendum would be due if appellant failed to make the monthly payments. 

The parties further agreed that U.S. Restoration would deliver the shingles Sechriest had 

found for the roof cap, and that appellant would finish the work on the roof cap and the 

shed himself. 
No. 14AP-899 7 

{¶ 24} On January 5, 2011, Sechriest placed a telephone order for delivery of the 

shingles for the roof cap. Sechriest stated that the cost of the shingles was $60, and the 

supplier's practice was to make deliveries the same or next day. Appellant testified that 

shingles were not delivered for the roof cap. Based on the evidence presented, the 

magistrate found that U.S. Restoration delivered the shingles for the shed to appellant, 

but that the evidence failed to establish delivery of the roof cap shingles. 

{¶ 25} In late January 2011, appellant made a $250 payment by check to U.S. 

Restoration. On January 25, 2011, U.S. Restoration filed a mechanic's lien on appellant's 

residence in the amount of $1,870.24. Sechriest testified that the mechanic's lien should 

have been in the amount of $1,569.86 (instead of $1,870.24), reflecting the amount due 

under the December 29, 2010 agreement in the event appellant failed to make the three 

monthly payments. 

{¶ 26} Upon receiving notice of the mechanic's lien, appellant became upset and 

did not make the two remaining monthly payments of $250 each. In December 2011, 

appellant and his spouse filed for bankruptcy; the mechanic's lien was subsequently 

removed during the bankruptcy proceedings. 

{¶ 27} At trial, appellant stated he was still dissatisfied with the color of the 

shingles on the roof. He agreed that U.S. Restoration had performed "decent" work on 

the roof, and that there were no leaks. (Tr. Vol. II, 220.) He also agreed that the new roof 

was better than his former roof, that it included upgrades to comply with current building 

codes, and that he received upgraded shingles as compared to the old roof. 

{¶ 28} The magistrate rendered a decision on September 12, 2013. With respect to 

appellant's first cause of action for alleged violations of HSSA, the magistrate ruled in 

favor of U.S. Restoration, finding that Turner provided appellant two copies of the threeday notice of cancellation form and orally informed him of the right to cancel as required 

by R.C. 1345.23. 

{¶ 29} The magistrate next addressed appellant's second cause of action, alleging 

four violations of CSPA. The magistrate first determined that the evidence indicated U.S. 

Restoration violated Ohio Adm.Code 109:4-3-05(A) by failing to provide appellant with a 

form indicating the reasonably anticipated completion date and containing required 

disclosure language notifying him of the right to an estimate. The magistrate also found 
No. 14AP-899 8 

that U.S. Restoration violated Ohio Adm.Code 109:4-3-05(B) by failing to orally inform 

appellant of the right to an estimate prior to commencement of work. The magistrate 

found U.S. Restoration did not violate Ohio Adm.Code 109:4-3-05(D)(16), as the evidence 

failed to show that U.S. Restoration disclaimed any warranty of the repair or service 

performed by the subcontractor, or that appellant requested the identity of the 

subcontractor. Finally, the magistrate determined that U.S. Restoration violated Ohio 

Adm.Code 109:4-3-05(D)(12) by failing to provide appellant with a written itemized list of 

repairs to be performed. 

{¶ 30} The magistrate next considered appellant's claim that he had been left with 

a roof he did not want, and that he was entitled to recover damages in the amount of three 

times the cost to replace the roof. The magistrate ruled that appellant, by entering into 

the addendum agreements on August 30 and December 29, 2010, "expressly, knowingly, 

and voluntarily waived any claim relating to the color of the shingles." Specifically, the 

magistrate found that appellant, on August 30, 2010, "agreed to a resolution of the 

dispute regarding the color of the roof in which he received a credit of $1,000.00 against 

the amount due," and that appellant "expressly acknowledged in his testimony that he 

gave up on the color issue as part of this resolution"; further, the parties entered into the 

written addendum specifying the remaining work to be performed by U.S. Restoration "in 

exchange for the reduced price, which work did not include changing the color of the roof 

itself." 

{¶ 31} The magistrate noted that the parties negotiated a second resolution of the 

dispute (on December 29, 2010) after U.S. Restoration changed the color of the roof cap 

and appellant expressed dissatisfaction with the color. In exchange for an additional 

credit against the amount owned, the parties agreed that U.S. Restoration would deliver 

shingles for the roof cap and shed, and that appellant would finish the work himself. 

{¶ 32} The magistrate held that, despite evidence of several CSPA violations, 

appellant failed to establish a proximate cause between those violations and the claimed 

damages (i.e., the cost of replacement of the roof); the magistrate therefore found 

appellant did not prove actual damages in connection with his CSPA claim. The 

magistrate further determined that appellant's "dissatisfaction with the roof color has no 

relationship to his claims that [U.S. Restoration] failed to provide a written or oral 
No. 14AP-899 9 

estimate or an itemized list of repairs." Based on the evidence presented, the magistrate 

concluded that appellant was entitled to recover statutory damages of $200 for each of 

the three CSPA violations, for a total award of $600. 

{¶ 33} With respect to appellant's claim for personal liability against Sechriest, the 

magistrate held that the evidence failed to establish Sechriest "dealt directly with the 

consumer in, or directed, the activities found to be CSPA violations." The magistrate thus 

concluded that appellant's "right to recover for the CSPA violations is only against [U.S. 

Restoration]." The magistrate also denied appellant's request for an award of attorney 

fees under CSPA. Finally, the magistrate ruled that the evidence did not support 

appellant's claims for fraud and slander of title. 

{¶ 34} Appellant filed seven objections to the magistrate's decision. By decision 

and entry filed October 31, 2014, the trial court overruled all of appellant's objections and 

adopted the magistrate's decision. 

{¶ 35} On appeal, appellant sets forth the following seven assignments of error for 

this court's review: 

I. THE TRIAL COURT ERRED IN REFUSING TO PERMIT 

THE PLAINTIFF TO PRESENT EVIDENCE REGARDING 

DAN SECHRIEST'S PAST CONSUMER SALES PRACTICES 

ACT VIOLATIONS. 

II. THE TRIAL COURT ERRED IN REFUSING TO FIND 

THAT THE "INSURANCE ALLOWANCE AGREEMENT" IS 

NOT A CONTRACT. 

III. THE TRIAL COURT ERRED IN ONLY FINDING THREE 

CSPA VIOLATIONS WHEN MORE VIOLATIONS WERE 

APPARENT ON THE FACE OF THE INSURANCE 

ALLOWNCE AGREEMENT. 

IV. THE TRIAL COURT ERRED IN FINDING THAT 

HELTON WAIVED THE ISSUE OF THE COLOR OF THE 

SHINGLES AS PART OF THE ATTEMPTED ACCORD AND 

SATISFACTION OF AUGUST 30, 2010, AND 

DECEMBER 29, 2010. 

V. THE TRIAL COURT ERRED IN FAILING TO FIND THAT 

THE DEFENDANTS' CONDUCT IN FILING A LATE-FILED 

AND PERJURIOUS MECHANIC'S LIEN DOES NOT 

CONSTITUTE SLANDER OF TITLE. 
No. 14AP-899 10 

VI. THE TRIAL COURT ERRED IN HOLDING THAT DAN 

SECHRIEST HAS NO PERSONAL LIABILITY IN THIS 

CASE. 

VII. THE TRIAL COURT ERRED IN FAILING TO AWARD 

THE PLAINTIFF HIS ATTORNEY FEES. 

{¶ 36} Under the first assignment of error, appellant contends the trial court erred 

in failing to permit him to introduce evidence with respect to an agreed consent judgment 

entry and order ("consent judgment") arising out of a 2007 action brought by the attorney 

general against Mastergard, a company formerly operated by Sechriest. According to 

appellant, the attorney general, in Franklin C.P. No. 07CV-9803, sought and secured a 

permanent injunction against Sechriest enjoining him from soliciting and engaging in 

consumer transactions in the home improvement business in the state until he met 

certain conditions. On August 9, 2010, the trial court in that action approved an agreed 

consent judgment which the attorney general and Mastergard proposed pursuant to R.C. 

1345.07(F). 

{¶ 37} Appellant argues that the consent judgment arising out of the 2007 action 

brought by the attorney general is critical to the issue of whether Sechriest knowingly 

made CSPA violations in the instant case. According to appellant, Sechriest is in "gross 

violation" of the consent judgment in case No. 07CV-9803. 

{¶ 38} As noted under the facts, appellees filed a motion in limine on July 24, 

2013, seeking to exclude evidence regarding any settlements or agreed consent judgments 

involving Mastergard, Sechriest, or U.S. Restoration, as well as any investigations by the 

attorney general. Prior to trial, the magistrate heard oral arguments on the motion, and 

the magistrate inquired of counsel for appellant as to the relevancy of the agreed consent 

judgment in case No. 07CV-9803. Counsel for appellant argued that the consent 

judgment in that case was relevant because "Sechriest is involved in the very same 

conduct * * * [h]e got busted for the first time," and "this goes to the issue of knowledge 

and whether he knows that his conduct violates [CSPA] and [HSSA]." (Tr. Vol. I, 6.) 

Counsel argued they were "not trying to submit this to show he's just generally a bad guy." 

(Tr. Vol. I, 6.) Rather, counsel argued, "we have to show * * * he is aware that the things 

he's doing now * * * are illegal." (Tr. Vol. I, 6.) 
No. 14AP-899 11 

{¶ 39} The magistrate, in addressing counsel's argument, stated on the record: 

"The requirement of knowledge * * * relevant to the CSPA claim is whether the person 

knows of the activity. Not whether they know it[']s illegal. They're still bound by the law 

whether they know what the law is or not." (Tr. Vol. I, 8.) Thus, the magistrate observed, 

"whether they know it's illegal is not an issue * * * under the CSPA." (Tr. Vol. I, 8.) 

{¶ 40} Counsel for appellant also argued that the consent judgment was relevant 

"to the issue of the punitive damages," asserting that "the conduct in this case is 

particularly egregious." (Tr. Vol. I, 8-9.) The magistrate, however, noting that "[y]our 

clients are not a party to that judgment," questioned "how would what happened in 2007 

tell me whether punitive damages would be appropriate in this case?" (Tr. Vol. I, 9.) 

Following argument on the motion, the magistrate determined that appellant had made 

"no showing of the relevance of this consent judgment to the legal issues in this case." (Tr. 

Vol. I, 16.) 

{¶ 41} In his objections to the magistrate's decision, appellant argued that the 

ruling of the magistrate denied him the right to present relevant, admissible evidence 

regarding past CSPA violations by Sechriest; according to appellant, the consent judgment 

was relevant because it established Sechriest had knowledge that his actions violated 

CSPA. The trial court overruled this objection, holding that the evidence appellant sought 

to present "was not direct evidence relating to this case." The court, noting that appellant 

had requested the magistrate to consider "outside matters relating to prior conduct" of 

appellees, concluded that appellant failed to demonstrate an abuse of discretion by the 

magistrate in declining to consider "such non-relevant testimony." 

{¶ 42} In reviewing an appeal from a trial court's adoption of a magistrate's 

decision, "our role is to determine if the trial court abused its discretion in ruling on the 

objections and by adopting that decision as its own." McCon v. Martini, 7th Dist. No. 97 

CA 152 (Nov. 10, 1999). Further, "a trial court has broad discretion in the admission or 

exclusion of evidence." In re G.C., 8th Dist. No. 83994, 2004-Ohio-5607, ¶ 27. Thus, "so 

long as such discretion is exercised in line with the rules of procedure and evidence, its 

judgment will not be reversed absent a clear showing of an abuse of discretion with 

attendant material prejudice." Id. 
No. 14AP-899 12 

{¶ 43} As noted, the magistrate rejected appellant's argument that the agreed 

consent judgment was relevant to show Sechriest knew his conduct was in violation of 

CSPA. We agree. Under Ohio law, a defendant "need not know that his conduct violates 

[CSPA]." Prince v. Campbell Roofing & Sheet Metal, 2d Dist. No. 19007, 2002-Ohio3809, ¶ 7. Rather, "the knowledge requirement concerns a defendant's knowing 

commission of an act, not knowledge that his act is contrary to law." Id., citing Einhorn v. 

Ford Motor Co., 48 Ohio St.3d 27, 30 (1990). 

{¶ 44} As also noted by the magistrate, appellant was not a party to the earlier 

consent judgment between the attorney general and Mastergard. Evid.R. 401 defines the 

term "relevant evidence" to mean "evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence." Here, the trial court could have 

reasonably determined that evidence concerning the 2007 action, resulting in a consent 

judgment between the attorney general and Mastergard (both non-parties to the instant 

proceeding), was not relevant to the issue of punitive damages or the claims against U.S. 

Restoration in the present case. On review, we find no error by the trial court in its 

determination that the magistrate's exclusion of the evidence at issue was proper. 

{¶ 45} Accordingly, appellant's first assignment of error is without merit and is 

overruled. 

{¶ 46} Appellant's second and fourth assignments of error are interrelated and will 

be considered together. Under the second assignment of error, appellant contends the 

trial court erred in failing to find, as a matter of law, that the insurance allowance 

agreement was not a contract; under his fourth assignment of error, appellant asserts the 

trial court erred in finding that he waived the issue as to the color of the shingles as part of 

an accord and satisfaction. 

{¶ 47} In his objections to the magistrate's decision, appellant argued that the 

insurance allowance agreement lacked key provisions of a binding contract, including a 

price term. Appellant also asserted the agreement was unenforceable because it was 

dependent on a third party (i.e., the insurance company) authorizing payment of the 

claim, and amounted to merely an agreement to agree. The trial court overruled 

appellant's objection, finding that it "belies the conduct of the parties to the agreement." 
No. 14AP-899 13 

The court noted that the insurance company "agreed that the roof replacement was 

necessary and * * * agreed * * * it would pay to replace it for the benefit of its insured." 

{¶ 48} Under Ohio law, "[a] contract is generally defined as a promise, or a set of 

promises, actionable upon breach," and the essential elements of a contract include "an 

offer, acceptance, contractual capacity, consideration (the bargained for legal benefit 

and/or detriment), a manifestation of mutual assent and legality of object and of 

consideration." Kostelnik v. Helper, 96 Ohio St.3d 1, 3 (2001). Thus, "[a] meeting of the 

minds as to the essential terms of the contract is a requirement to enforcing the contract." 

Id. at 3-4. 

{¶ 49} In general, "[a] contract price must be definite and certain." Preston v. First 

Bank of Marietta, 16 Ohio App.3d 4, 6 (4th Dist.1983). However, "[a]lthough a contract 

must be definite as to price, it is just as well established that parties may make a binding 

contract where the price is not stated exactly." Id. In addition, "the law may impose a 

presumption of reasonableness or 'fair value' when services are performed pursuant to an 

express contract that does not specify a price." Ameritech Publishing, Inc. v. Snyder Tire 

Wintersville, Inc., 7th Dist. No. 09 JE 35, 2010-Ohio-4868, ¶ 32. 

{¶ 50} As noted under the facts, appellant and Turner met on May 8, 2010, at 

which time they discussed the possibility of U.S. Restoration installing a new roof due to 

hail storm damage. According to appellant, Turner "believed that they could give me a 

free roof and my insurance would pay the entire amount." (Tr. Vol. II, 45.) During that 

meeting, appellant and Turner both signed the "insurance allowance agreement," which 

provided for U.S. Restoration to assist the homeowner with the insurance claim. Under 

the terms, U.S. Restoration agreed to install dimensional shingles on the roof, with the 

contract price to be the final price agreed on between the homeowner's insurance 

company and U.S. Restoration, "at no cost to the homeowner." 

{¶ 51} Here, appellant testified that Turner represented U.S. Restoration would 

install a new roof with zero out-of-pocket cost to him. Appellant further acknowledged 

that an adjuster, acting on behalf of his insurer (American Family), met with Turner at the 

residence to assess the roof damage; appellant subsequently learned that American 

Family agreed to cover the hail damage claim, and appellant received two checks from his 

insurer for a total amount of $6,678.70. On June 10, 2010, appellant and his wife signed 
No. 14AP-899 14 

over the first check in the amount of $2,108.84 to U.S. Restoration. On July 31, 2010, a 

subcontractor of U.S. Restoration installed a new roof, and appellant acknowledged the 

roofers did a "decent" job of roofing the house. (Tr. Vol. II, 220.) 

{¶ 52} Appellant's claim that the agreement was indefinite for lack of a specific 

price term is not persuasive. Under Ohio law, "[a]n offer is not indefinite if the agreed 

price, though not specifically stated, is easily ascertainable by reference to some extrinsic 

standard." Preston at 6, citing 1 Williston on Contracts (3 Ed.1957) 153, Section 47. See

also Natl. Wholisticenter v. George E. Wilson Co., 9th Dist. No. 20928, 2002-Ohio-5039, 

¶ 19, quoting Bailey v. Mills, 5th Dist. No. 1999 AP 07 0043 (Feb. 7, 2001) (" 'If the price 

is not specified in the contract, it must be easily ascertainable by reference to some 

extrinsic standard.' "). 

{¶ 53} The terms of the agreement at issue prescribe a method for ascertaining the 

price based on an extrinsic standard, i.e., the parties agreed to be bound to a price term 

reflecting the amount agreed on by the insurance company and U.S. Restoration, with the 

provision that U.S. Restoration would perform such repairs at no cost to appellant. The 

fact that the parties tied the determination of price to a third party (i.e., the insurance 

company) does not render the agreement indefinite. See, e.g., Cobble Hill Nursing Home, 

Inc. v. Henry & Warren Corp., 74 N.Y.2d 475, 483 (1989) (agreement manifesting the 

parties' unmistakable intent that sales price for nursing home was to be fixed by a third 

person provided "an objective standard without the need for further expressions by the 

parties"). See also E. Allan Farnsworth, Contracts, Section 3.28, 198 (1982) ("provisions 

delegating to a third party the power to fix a term – usually price – have generally been 

held to meet the requirement of definiteness"). Accordingly, the price term in this case 

was "certain enough to constitute an enforceable contract." Ameritech Publishing at ¶ 33. 

{¶ 54} We also find no merit to appellant's contention that the agreement was 

unenforceable because there were no assurances the insurer would pay. Appellant points 

to language in the agreement that U.S. Restoration reserved, "[f]or a period of 10 days 

after all periods of rescission have expired," the right to cancel the agreement in the event 

the insurer did not authorize necessary funds. However, when a contract as a whole is 

supported by consideration, "a reservation of the right to cancel the contract on notice 

does not make the contract unenforceable because the party reserving the right to cancel 
No. 14AP-899 15 

is bound to perform unless and until such notice is given." Driscoll v. Norprop, Inc., 129 

Ohio App.3d 757, 764 (8th Dist.1998). See also Spacek v. Maritime Assn., 134 F.3d 283, 

297 (5th Cir.1998), quoting Corbin on Contracts, Section 164 (1963) ("if a party reserves 

the right to terminate upon a certain period of notice to the other party, the reserving 

party's promise is not rendered illusory because 'the party in whom the power has been 

reserved has made a real promise, one that in terms purports to control his action during 

the specified period of notice' "); Azad v. MRCO, Inc., Tex.App. No. 14-12-00165-CV 

(Nov. 7, 2013) (rejecting argument that contract could not exist between property owner 

and contractor until insurer made a coverage determination where the insurance 

authorization form was not subject to further negotiations between property owner and 

contractor, and the form capped the sum to be paid by property owner for repairs at an 

amount not to exceed the amount finalized with the insurance company). 

{¶ 55} As also noted by the trial court, and outlined under the facts above, 

appellant's challenge as to the certainty of the terms overlooks the parties' course of 

conduct. Specifically, after the parties signed the agreement, U.S. Restoration obtained 

approval for the repairs, and the insurance company issued its first check to appellant in 

May 2010. Appellant and his wife endorsed that check to U.S. Restoration, and the 

company replaced the roof on July 31, 2010. The issue of "[w]hether the parties intended 

to be bound * * * is a question of fact properly resolved by the trier of fact." Oglebay 

Norton Co. v. Armco, 52 Ohio St.3d 232, 235 (1990). In the present case, the record 

supports the trial court's determination that the parties' course of conduct belies 

appellant's claim there was no contract. 

{¶ 56} Further, the record supports the magistrate's determination that appellant 

waived, through accord and satisfaction, any claim relating to the color of shingle by 

entering into the August 30 and December 29, 2010 agreements with U.S. Restoration. In 

general, an accord is "a contract between a debtor and a creditor where the claim is settled 

for a sum other than the amount allegedly due." Coburn v. Auto-Owners Ins. Co., 189 

Ohio App.3d 322, 2010-Ohio-3327, ¶ 26 (10th Dist.). The elements necessary to have an 

accord and satisfaction are " 'proper subject matter, competent parties, mutual assent, 

and consideration.' " Id., quoting State ex rel. Shady Acres Nursing Home, Inc. v. Rhodes, 

7 Ohio St.3d 7, 8 (1983). Under this doctrine, "[s]atisfaction takes place when the creditor 
No. 14AP-899 16 

accepts the accord." Stan Gertz & Assoc., Inc. v. Donald K. Gant Realty, 9th Dist. No. 

14805 (June 12, 1991). Accordingly, "[a]n accord and satisfaction 'cannot be 

consummated unless the creditor accepts the lesser amount with the intention that it 

constitutes settlement of the claim.' " Coburn at ¶ 26, quoting Shady Acres at 8. 

{¶ 57} The record in this case indicates that, after workers for U.S. Restoration 

completed the roofing work on July 31, 2010, appellant expressed his dissatisfaction to 

Sechriest regarding the shingle color. Appellant testified that Sechriest came to his 

residence on August 30, 2010, and they "discussed an actual resolve," and "signed an 

addendum to the agreement" on that date. (Tr. Vol. II, 103.) During that meeting, 

appellant again "expressed to him my disliking of the roof, the color." (Tr. Vol. II, 107.) 

Appellant testified that he signed the addendum reflecting that U.S. Restoration would 

"bring over the shed shingles, * * * they would bring over the cap that would at least 

match the wrong color that was on my roof and * * * then they would take less." (Tr. Vol. 

II, 113.) According to appellant, "they quoted it as about a thousand dollars they allowed 

to me." (Tr. Vol. II, 113.) 

{¶ 58} Regarding the addendum, Sechriest testified that appellant was "displeased 

still with the roofing shingle color," and that "[w]e tried to make an amends with him, a 

discount, and we came up with $1,000 as a figure." (Tr. Vol. III, 138.) Sechriest stated 

that he also agreed to install a new roof cap and provide shingles for appellant's shed. 

{¶ 59} The terms of the addendum provided that U.S. Restoration would "install 

only the [roof] cap," provide the homeowner with "2.66 square of shingles" for the shed, 

as well as provide a cap for the shed. The addendum further provided: "The homeowner 

will pay $3,569.86 upon completion [and] delivery. The project will be paid in full at that 

time." During cross-examination, appellant was asked whether he was "willing to give up 

[U.S. Restoration] changing the color to desert tan for you as a part of this resolution?" 

Appellant responded: "Yes." (Tr. Vol. III, 14.) 

{¶ 60} Sechriest testified that the new roof cap was installed in October 2010; 

according to Sechriest, the color of the shingles for the new roof cap "was better looking 

than the first one, but it wasn't exactly a perfect match" because of the "shading of the 

dimensional shingle." (Tr. Vol. III, 143.) 
No. 14AP-899 17 

{¶ 61} After U.S. Restoration changed the color of the roof cap, appellant was still 

not pleased with the color of the shingles, leading to further negotiations between 

appellant and Sechriest on December 29, 2010. Specifically, Sechriest testified that he 

placed calls with suppliers in an attempt to "track down an exact match cap." (Tr. Vol. III, 

144.) Sechriest was able to obtain some bundles of "Sunrise Cedar" three-tab shingles. 

(Tr. Vol. III, 144.) Sechriest learned that those cap shingles would be available in 

December. 

{¶ 62} Sechriest spoke with appellant on December 29, 2010, at which time 

Sechriest learned that appellant had cashed the second insurance check and "didn't have 

all the money that he used to have." (Tr. Vol. III, 146.) Sechriest testified that "we were 

offered $2,000. And it came about that he could make another * * * three payments of 

$250, but he couldn't make it right away. He'd have to wait until the first of February and 

then March and then April." (Tr. Vol. III, 146-47.) Sechriest then made an agreement 

with appellant to accept a check for $2,000 at that time, and if appellant made three 

subsequent payments of $250 each "we would waive the balance that he still owed after 

that only if we received those payments." (Tr. Vol. III, 148.) Thus, U.S. Restoration 

agreed to give appellant an additional credit of $819 as part of the resolution. According 

to Sechriest, appellant understood that if he failed to make those subsequent payments 

"the full balance would be owed." (Tr. Vol. III, 148.) Sechriest testified that he ordered 

the cap shingles on January 5, 2011. 

{¶ 63} Appellant testified that "we negotiated down again to a different dollar 

amount. I was going [to] give them a $2,000 check that day on December 29 of 2010 and 

then I was going to make payments up to $750, which totals 250 each payment." (Tr. Vol. 

II, 133.) Appellant acknowledged that he was to make equal payments of $250 each in 

"February, March and April." (Tr. Vol. II, 133.) Appellant mailed the first $250 payment 

at the end of January. Appellant refused to make the remaining payments after learning 

that U.S. Restoration had placed a mechanic's lien on his property. 

{¶ 64} Based on the evidence presented, the magistrate concluded that appellant 

expressly, knowingly, and voluntarily waived any claim relating to the color of the 

shingles. In overruling appellant's objection, the trial court found that the evidence was 

clear that appellant agreed to accept a compromise to resolve the color issue. On review 
No. 14AP-899 18 

of the record, there was competent, credible evidence supporting the trial court's 

determination that the parties compromised as to the issue of the color of shingles by 

entering into the addendums on August 30 and December 29, 2010, under which 

appellant agreed to credits of $1,000 and $819.86, respectively, in order to resolve the 

impasse. Accordingly, the trial court did not err in overruling appellant's objection on this 

issue. 

{¶ 65} Based on the foregoing, appellant's second and fourth assignments of error 

are without merit and are overruled. 

{¶ 66} Under his third assignment of error, appellant argues the trial court erred in 

finding only three CSPA violations. According to appellant, the insurance allowance 

agreement contains various CSPA violations "apparent on the face" of the agreement, 

including the failure to set forth: (1) a start and completion date; (2) the number of layers 

of shingles to be torn off; (3) the name of the manufacturer supplying the shingles; (4) the 

color of shingle; and (5) the number of ridge vents to be replaced. Appellant asserts 

further CSPA violations because the document at issue contains blank spaces, and the 

cancellation notice is not in 10-point, bold-face type. Appellant also notes that the 

agreement lists the duration of the manufacturer's limited warranty as "30 years," but he 

argues that the evidence indicates no warranty was provided to him. Finally, appellant 

argues that the request by appellees in their counterclaim for attorney fees constituted a 

violation of the Fair Debt Collection Practices Act ("FDCPA"). 

{¶ 67} As noted by appellees, appellant did not raise many of the above issues in 

his objections before the trial court. Pursuant to Civ.R. 53(D)(3)(b)(iv), "[e]xcept for a 

claim of plain error, a party shall not assign as error on appeal the court's adoption of any 

factual finding or legal conclusion, whether or not specifically designated as a finding of 

fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that 

finding or conclusion as required by Civ.R. 53(D)(3)(b)." See also State ex rel. 

Muhammad v. State, 133 Ohio St.3d 508, 2012-Ohio-4767, ¶ 3 (party waives argument on 

appeal if that party failed to specifically raise issue in objections to magistrate's decision). 

Accordingly, we confine our review to those issues appellant raised in his objections to the 

trial court from the magistrate's decision. 
No. 14AP-899 19 

{¶ 68} In his objections to the magistrate's decision, appellant argued that 

appellees' use of the insurance allowance agreement violated CSPA because: (1) the 

agreement failed to include all material statements in a written contract; (2) the 

agreement signed by the consumer contained blank spaces; and (3) appellees failed to 

provide a 30-year warranty despite language to the contrary. Appellant also filed a 

supplemental objection, in which he argued that appellees had violated FDCPA by 

requesting, in their counterclaim, an award of attorney fees. 

{¶ 69} In addressing these objections, the trial court, noting that the magistrate 

found "technical violations [of CSPA] and awarded $600.00 in statutory damages," found 

that appellant presented "no evidence for this Court to alter the determinations of the 

Magistrate." The court concluded that appellant "agreed to compromise his claims for 

$1,000.00" and, "[h]aving so agreed, * * * is limited to the statutory damages mandated 

by the CSPA." 

{¶ 70} Although appellant contends that various CSPA violations are apparent on 

the face of the insurance allowance agreement, his essential argument is that the trial 

court's failure to find these alleged violations was against the manifest weight of the 

evidence. In this respect, judgments supported by some competent, credible evidence, 

going to all the essential elements of the case will not be reversed as being against the 

manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 

(1978), syllabus. 

{¶ 71} The Supreme Court of Ohio has observed that "[t]he Consumer Sales 

Practices Act, R.C. Chapter 1345, 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." Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio4985, ¶ 24. CSPA "[i]n general * * * 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." Id. 

{¶ 72} As noted above, appellant contends the trial court should have found a 

violation of CSPA for failure of the agreement to include all material terms. However, a 

supplier's failure to put all the material aspects of an agreement in writing does not 
No. 14AP-899 20 

constitute a "per se violation of the CSPA." Warren v. Denes Concrete, Inc., 9th Dist. No. 

08CA009414, 2009-Ohio-2784, ¶ 12 (observing that "neither the CSPA nor the Ohio 

Administrative Code requires all suppliers, regardless of the circumstances, to place their 

entire agreement with a consumer in writing"). We note that this court has declined to 

adopt a strict liability standard for certain violations of CSPA. Conley v. Lindsay Acura, 

123 Ohio App.3d 570, 575 (1oth Dist.1997) (supplier's omission of express limitations did 

not amount to deceptive, unconscionable, or unfair conduct). 

{¶ 73} Here, both the magistrate and trial court found that the parties had a 

meeting of the minds as to the essential terms of the insurance allowance agreement, as 

well as the subsequently negotiated addendums entered on August 30 and December 29, 

2010. As discussed above, there was testimony by appellant indicating that he 

understood the parties' respective obligations under the agreement, including the 

obligation of U.S. Restoration to obtain approval from his insurer for the roof work, and 

his obligation to forward checks to U.S. Restoration to cover the cost of the roof 

replacement. The subsequent actions of the parties reflected that understanding, as the 

insurer approved the work, U.S. Restoration performed the work, and appellant signed 

over the first check to U.S. Restoration. As further discussed above, because of a dispute 

over the shingle color, the parties entered into the addendums, and appellant testified as 

to his understanding of his obligations under the terms of those agreements. On review, 

the trial court's determination that the parties agreed to the essential terms of the 

agreement was not against the manifest weight of the evidence, and the court did not err 

in failing to find a CSPA violation as to that issue. 

{¶ 74} Appellant further argues that courts have found a violation of CSPA in cases 

in which a customer executed a contract containing blank spaces. In support, appellant 

cites Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829 (9th Dist.), a 

case dealing with an arbitration clause. We note that appellant does not contend there 

was evidence in the instant case that appellees filled in blank spaces on the agreement 

after he signed the document, and we find no error by the trial court in failing to find a per 

se violation of CSPA based on the facts presented. 

{¶ 75} Appellant also contends the trial court erred in failing to find a CSPA 

violation under Ohio Adm.Code 109:4-3-05(D)(16). In his objections, appellant argued 
No. 14AP-899 21 

that the insurance allowance agreement provided that the duration of the manufacturer's 

limited warranty was 30 years, but that there was testimony U.S. Restoration did not 

provide a warranty. 

{¶ 76} Ohio Adm.Code 109:4-3-05 states in part: 

(D) In any consumer transaction involving the performance of 

any repair or service it shall be a deceptive act or practice for a 

supplier to: 

* * * 

(16) Fail to disclose to the consumer prior to the 

commencement of any repair or service, that any part of the 

repair or service will be performed by a person other than the 

supplier or the supplier's employees if the supplier disclaims 

any warranty of the repair or service performed by that 

person, the nature of the repair or service which that person 

will perform, and if requested by the consumer, the identity of 

that person. 

{¶ 77} Appellant's contention that the trial court erred in failing to find a violation 

of Ohio Adm.Code 109:4-3-05(D)(16) is unpersuasive. Here, while the facts indicate 

subcontractors performed the work, the evidence, as found by the magistrate, did not 

show that U.S. Restoration disclaimed any warranty of the repair or service performed by 

the subcontractors, nor was there evidence that appellant requested the identity of the 

individuals performing the work. 

{¶ 78} Appellant also argued in his supplemental memorandum in support of 

objections that appellees violated FDCPA by attempting to recover attorney fees on a 

consumer debt, and in seeking attorney fees in their counterclaim. In support, appellant 

cited two federal cases, Gionis v. Javitch, Block & Rathbone, 405 F.Supp.2d 856 

(S.D.Ohio 2005), and Foster v. D.B.S. Collection Agency, 463 F.Supp.2d 783 (S.D.Ohio 

2006), for the proposition that Ohio law does not permit creditors to request attorney fees 

in certain debt collection actions. 

{¶ 79} The stated purpose of the FDCPA is to "eliminate abusive debt collection 

practices by debt collectors, to insure that those debt collectors who refrain from using 

abusive debt collection practices are not competitively disadvantaged, and to promote 

consistent State action to protect consumers against debt collection abuses." 15 U.S.C. 
No. 14AP-899 22 

1692(e). In accordance with those goals, "[t]he Act makes it unlawful for debt collectors 

to use abusive tactics while collecting debts for others," and "[i]t imposes civil liability 

only upon 'debt collectors' as defined by the Act." Games v. Cavazos, 737 F.Supp. 1368, 

1382 (D.C.Del.1990). 

{¶ 80} The term "debt collector" is defined to mean "any person who uses any 

instrumentality of interstate commerce or the mails in any business the principal purpose 

of which is the collection of any debts, or who regularly collects or attempts to collect, 

directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. 

1692a(6). Thus, it has been held " 'the statute does not apply to persons or businesses 

collecting debts on their own behalf. * * * It is directed to those persons who are engaged 

in business for the principal purpose of collecting debts.' " D.A.N. Joint Venture III, L.P. 

v. Armstrong, 11th Dist. No. 2006-L-089, 2007-Ohio-898, ¶ 40, quoting Staub v. Harris, 

626 F.2d 275, 277 (3d Cir.1980). 

{¶ 81} Appellees argue that appellant never alleged necessary operative facts 

regarding claims under FDCPA in his pleadings, and further contend that he failed to 

present any evidence that U.S. Restoration and/or counsel for appellees qualify as "debt 

collectors" as defined under 15 U.S.C. 1692a(6). We agree. A review of the record 

supports appellees' contention that appellant failed to plead a valid claim for FDCPA 

violations, nor does the record show that appellant established at trial that either U.S. 

Restoration or counsel for appellees are debt collectors as defined under FDCPA. 

{¶ 82} Based on the foregoing, appellant's third assignment of error is without 

merit and is overruled. 

{¶ 83} Under his fifth assignment of error, appellant contends the trial court erred 

in failing to find U.S. Restoration committed slander of title by filing the mechanic's lien 

in January 2011. Appellant argues that the mechanic's lien filed by U.S. Restoration was 

untimely and for the wrong amount, and appellant maintains the trial court should have 

found the conduct of appellees was malicious or made with reckless disregard for its 

falsity. 

{¶ 84} As noted by appellees, however, appellant did not raise the above objection 

before the trial court. Rather, while appellant's fourth cause of action alleged slander of 

title based on the filing of the mechanic's lien by U.S Restoration, his objection to the trial 
No. 14AP-899 23 

court raised a different argument. Specifically, under his objection, appellant argued that 

U.S. Restoration's conduct in filing the mechanic's lien constituted a violation of CSPA. 

{¶ 85} The trial court addressed this new argument, noting that appellant "now 

contends that there were violations of the CSPA as a result of the late filing." The court 

overruled appellant's objection, finding that testimony at trial "established that the lien 

with an incorrect amount was filed within the sixty (60) day window allowed by the 

CSPA." The court thus concluded it could not find "any harm caused to Plaintiff by the 

filing of the Mechanic's Lien and adopts the findings and conclusion of the Magistrate." 

{¶ 86} Because appellant's objection with respect to the filing of the mechanic's 

lien did not challenge the magistrate's determination that the evidence failed to establish 

U.S. Restoration committed slander of title by acting maliciously or recklessly in filing the 

lien, appellant has waived any claimed error as to that issue. Appellant's fifth assignment 

of error is therefore overruled. 

{¶ 87} Under his sixth assignment of error, appellant asserts the trial court erred in 

failing to find Sechriest personally liable under a traditional theory of piercing the 

corporate veil. According to appellant, the evidence reflects that Sechriest dealt directly 

with him regarding the availability of the desert tan shingles, and appellant further 

maintains that Sechriest directed and controlled every aspect of U.S. Restoration's 

business. 

{¶ 88} Under Ohio law, "[t]he general rule is that corporations are legal entities 

distinct from the natural persons who compose them; therefore, officers, directors, and 

shareholders are not normally liable for the debts of their corporations." Stewart v. R.A. 

Eberts Co., 4th Dist. No. 08CA10, 2009-Ohio-4418, ¶ 15, citing Belvedere Condominium 

Unit Owners' Assn. v. R.E. Roark Cos., 67 Ohio St.3d 274, 287 (1993). Further, 

" '[b]ecause "[o]ne of the purposes of incorporation is to limit the liability of individual 

shareholders," the party seeking to have the corporate form disregarded bears the burden 

of proof.' " Stewart at ¶ 15, quoting RCO Internatl. Corp. v. Clevenger, 180 Ohio App.3d 

211, 2008-Ohio-6823, ¶ 10 (10th Dist.), quoting Univ. Circle Research Ctr. Corp. v. 

Galbreath Co., 106 Ohio App.3d 835, 840 (8th Dist.1995). 

{¶ 89} In Belvedere at paragraph three of the syllabus, the Supreme Court set forth 

a three-pronged test for piercing the corporate veil, holding that the corporate form may 
No. 14AP-899 24 

be disregarded and individual shareholders may be liable for wrongs committed by the 

corporation when: "(1) control over the corporation by those to be held liable was so 

complete that the corporation has no separate mind, will, or existence of its own, 

(2) control over the corporation by those to be held liable was exercised in such a manner 

as to commit fraud or an illegal act against the person seeking to disregard the corporate 

entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong." 

With respect to the second prong, this court has noted that "[w]hile the court in Belvedere

employed the words 'fraud or illegal act,' Ohio courts, including this court, have held that 

the second prong is satisfied when 'unjust or inequitable' consequences occur." 

Sanderson Farms, Inc. v. Gasbarro, 10th Dist. No. 01AP-461, 2004-Ohio-1460, ¶ 38. 

{¶ 90} In addressing appellant's claim that Sechriest should be held personally 

liable for CSPA violations, the magistrate determined that "[t]he evidence did not 

establish that Mr. Sechriest dealt directly with the consumer in, or directed, the activities 

found to be CSPA violations," and therefore appellant's right to recover for CSPA 

violations "is only against [U.S. Restoration]." Further, in addressing appellant's third 

cause of action for fraud, the magistrate found that the evidence failed to establish 

Sechriest knowingly or recklessly made a false representation regarding the color of the 

shingles; rather, the magistrate found, Sechriest "attempted, unsuccessfully, to find the 

color of shingles Mr. Helton wanted." Finally, the magistrate determined that appellant's 

fraud claim failed "for the additional reason that by entering into the August 30 and 

December 29, 2010 agreements, Mr. Helton expressly, knowingly, and voluntarily waived 

any claim relating to the color of the shingles in exchange for a credit against the amount 

owed." 

{¶ 91} In his objections to the magistrate's decision, appellant argued, as he does 

on appeal, that Sechriest directed and controlled each aspect of U.S. Restoration's 

business, and that all of the elements for piercing the corporate veil were present. The 

trial court overruled this objection, holding in part there was no evidence that Sechriest, 

through control over U.S. Restoration, intentionally attempted to deceive or harm 

appellant, and therefore appellant had not met his burden to demonstrate that Sechriest 

should be personally liable. 
No. 14AP-899 25 

{¶ 92} Based on the record presented, we find no error with the trial court's failure 

to hold Sechriest personally liable under a traditional theory of piercing the corporate veil. 

As noted, the magistrate found no evidence that Sechriest dealt directly with the 

consumer with respect to the activities found to be CSPA violations, i.e., the activities of 

Turner in failing to provide an estimate, a written itemized list of repairs, etc. In this 

respect, courts have held that "[i]n order to hold a corporate officer personally liable for 

his actions in violation of [CSPA], the evidence must show the officer took part in the 

commission of the act, specifically directed the particular act to be done, or participated or 

cooperated therein." Grayson v. Cadillac Builders, 8th Dist. No. 68551 (Sept. 14, 1995). 

{¶ 93} Further, in addressing appellant's objections, the trial court noted that the 

magistrate found three "technical" violations of CSPA by U.S. Restoration, including 

failure to disclose to appellant his right to receive an estimate, but determined there was 

no evidence Sechriest "intentionally attempted to deceive or harm" appellant. Rather, the 

trial court held, the agreement by U.S. Restoration "to compromise in this case 

demonstrates an effort to resolve the dispute for the benefit of all." On review, we find 

that the trial court's failure to find that Sechriest used his control over U.S. Restoration to 

commit an unjust or harmful act against appellant was not against the manifest weight of 

the evidence. Accordingly, the trial court did not err in failing to pierce the corporate veil. 

{¶ 94} Appellant's sixth assignment of error is without merit and is overruled. 

{¶ 95} Under his seventh assignment of error, appellant contends the trial court 

erred in failing to award attorney fees, arguing that the court should have awarded such 

fees on the basis that U.S. Restoration knowingly committed acts or practices in violation 

of CSPA. In support, appellant points to evidence regarding his dissatisfaction with the 

color of the shingles, and he again argues that Sechriest engaged in conduct he knew 

violated CSPA based on the 2010 consent judgment entered between the attorney general 

and Mastergard. 

{¶ 96} R.C. 1345.09 states in part as follows: 

(F) The court may award to the prevailing party a reasonable 

attorney's fee limited to the work reasonably performed and 

limited pursuant to section 1345.092 of the Revised Code, if 

either of the following apply: 

* * * 
No. 14AP-899 26 

(2) The supplier has knowingly committed an act or practice 

that violates this chapter. 

 

{¶ 97} Thus, pursuant to the provisions of R.C. 1345.09(F)(2), "a trial court may 

award a consumer reasonable attorney fees when the supplier in a consumer transaction 

intentionally committed an act or practice which is deceptive, unfair or unconscionable." 

Einhorn at syllabus. The Supreme Court has held that "the 'knowing' commission of an 

act that violates R.C. Chapter 1345 does not mandate imposition of attorney fees." 

Charvat v. Ryan, 116 Ohio St.3d 394, 2007-Ohio-6833, ¶ 27. Rather, "[t]he trial court 

has the discretion to determine whether attorney fees are warranted under the facts of 

each case." Id. 

{¶ 98} In the present case, the magistrate cited the following reasons for declining 

to award attorney fees: (1) appellant's "only substantive complaint about the roofing work 

was his dissatisfaction with the color of the shingles, and he knowingly gave up this issue 

in exchange for a credit against the amount owed"; (2) the "only CSPA violations found 

did not proximately cause any actual damages" to appellant; (3) U.S. Restoration "did not 

intentionally deceive [appellant]"; and (4) U.S. Restoration "performed quality work, and 

Mr. Helton received value." In addressing appellant's objection to the magistrate's 

findings, the trial court, noting that the award of attorney fees under CSPA is 

discretionary, agreed with the magistrate's determination not to award attorney fees in 

this case. 

{¶ 99} As noted, "[a]n award of attorney fees is discretionary, not mandatory," and 

this court's standard of review is an "abuse of discretion." Hudson-Wobbecke Ents. v. 

Burwell, 5th Dist. No. 06-CA-58, 2007-Ohio-1728, ¶ 58. We have previously addressed 

appellant's argument with respect to the relevancy of the 2007 action leading to the 2010 

consent judgment, as well as appellant's claim that he did not give up on the issue of 

shingle color. On review of the decisions of the magistrate and trial court, we find no 

abuse of discretion by the trial court in declining to award attorney fees under the facts 

and circumstances of this case. 

{¶ 100} Appellant's seventh assignment of error is without merit and is overruled. 

{¶ 101} Based on the foregoing, the trial court did not err in overruling appellant's 

objections and adopting the decision of the magistrate. Accordingly, appellant's seven 
No. 14AP-899 27 

assignments of error are overruled, and the judgment of the Franklin County Court of 

Common Pleas is hereby affirmed. 

Judgment affirmed.

KLATT and SADLER, JJ., concur. 

____________________