[Cite as Frank v. WNB Group, L.L.C.,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

BRIAN FRANK, : APPEAL NO. C-180032 TRIAL NO. A-1406530 Plaintiff-Appellant, :

vs. : O P I N I O N.

WNB GROUP, LLC, d.b.a THE RAY : HAMILTON MOVING COMPANY, : Defendant-Appellee.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 3, 2019

The Durst Law Firm and Alexander J. Durst, for Plaintiff-Appellant,

Finney Law Firm, LLC, and Stephen E. Imm, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, Judge.

{¶1} Plaintiff-appellant Brian Frank challenges the trial court’s entry of

summary judgment for defendant-appellee WNB Group LLC, d.b.a. The Ray Hamilton

Moving Company (“RH”), on Frank’s Ohio Consumer Sales Practices Act (“CSPA”) claim.

For the following reasons, we reverse.

I. Relevant Background Facts and Procedure

{¶2} According to Frank’s deposition testimony and affidavit,1 he purchased

a large ceramic fountain from an antique store. The store would not deliver the item,

and upon Frank’s request, the store’s owner recommended that Frank hire RH to

transport and install it at Frank’s hillside residence. Before hiring RH, Frank had a

telephone conversation with the moving company’s owner, Jay Wallace. Wallace and

Frank orally agreed on a rate of about $2000, but did not discuss RH’s insurance

coverage for damage incurred to the fountain during the move.

{¶3} Wallace assured Frank that he would send Randy Jackson, an

experience employee, to perform the move. RH’s website, which Frank had viewed,

indicated that RH had “customized white-glove handling solutions for fine art,” but

stated nothing about insurance coverage. Less than a year prior, when Frank had

hired RH for his employer, an employee of RH had informed him that the company

had “full coverage” insurance.

{¶4} In November 2012, RH employees including Jackson successfully

transported the fountain from the antique store to Frank’s residence, but the crate

1 The record contains several notices indicating that Frank would file the transcribed depositions of others, but only one other deposition, related to the issue of damages, was filed. Further, while the transcript of Frank’s deposition was filed, the exhibits referred to in the deposition were not filed.

2 OHIO FIRST DISTRICT COURT OF APPEALS

containing the fountain fell to the ground during the unloading process, damaging

the fountain.

{¶5} After installing the damaged fountain, Jackson apologized to Frank

and told him that RH would pay for the repairs. At the same time, Jackson directed

Frank to call the office to find out how much was owed for the service and gave him a

document acknowledging the completion of the move, on which Jackson had written,

“Fountain was dropped on its face by [Defendant,] * * * damage to be accessed for

repair.” That form also contained information about the deductible and limit of RH’s

insurance policy.

{¶6} When Frank contacted RH the next day to pay for the service, he was

assured that RH had insurance that would pay for the repairs. Frank paid for the

service, believing that RH would pay to repair the fountain and that it had insurance

coverage for those repairs.

{¶7} Subsequently, RH submitted a claim to its insurer for damage to the

fountain. In April 2013, after an investigation, the insurer denied the claim, and RH

notified Frank about the lack of coverage. Frank then called Wallace to find out how

RH was going to pay for the repairs. Wallace told him that RH was not going to pay

for the damage to the fountain because the insurer had denied coverage.

{¶8} After Wallace told him RH would not pay for the repairs, Frank

obtained estimates for the repairs and paid approximately $27,000 to repair the

fountain that he had purchased for $22,000. He also filed a lawsuit against RH,

setting forth claims for negligence and violations of the CSPA.

{¶9} Frank dismissed his original lawsuit but later filed this lawsuit

alleging the same claims. RH moved for summary judgment on the CSPA claim,

3 OHIO FIRST DISTRICT COURT OF APPEALS

arguing that the case involved damages to a decorative fountain that were

proximately caused by RH’s negligence, but that Frank had stated no legally

actionable or factually meritorious violation of the CSPA.

{¶10} Frank opposed summary judgment. Of importance to this appeal, he

contended that a genuine issue of material fact remained as to whether RH had

engaged in an unfair, deceptive or unconscionable act or practice by failing to

disclose to Frank when it agreed to move the fountain the limited scope of its

insurance coverage; by telling him that the company would pay to repair the

fountain, but then refusing to pay for the repairs; and by negligently unloading the

fountain.

{¶11} The trial court determined that no material facts were in dispute and

there was no way to construe those facts to support any claimed violation of the

CSPA. After granting RH’s motion for summary judgment on the CSPA claim, it

certified in its partial judgment that there was no just cause for delay. Frank now

appeals.

{¶12} Frank’s sole assignment of error alleges the trial court erred by

granting RH’s motion for summary judgment, because genuine issues of material

fact remained as to the alleged CSPA violations. He essentially contends that a

reasonable fact finder could find for him and against RH on the claimed violations.

Because the case was decided upon summary judgment, we review the matter de

novo, applying the standards set forth in Civ.R. 56. Comer v. Risko,

,

,

, ¶ 8.

4 OHIO FIRST DISTRICT COURT OF APPEALS

II. Analysis

{¶13} CSPA is a remedial law that prohibits unfair,

deceptive, or unconscionable acts or practices. Ohio’s Consumer Sales

Practices Act is a remedial law, designed to compensate for inadequate traditional

consumer remedies, and must be liberally construed to achieve its remedial purpose.

See Einhorn v. Ford Motor Co.,

,

(1990).

Modeled after the Uniform Consumer Sales Practices Act, it provides “policies [for]

protecting consumers from suppliers who commit deceptive and unconscionable

sales practices and encourage[s] the development of fair consumer sales practices.”

Crye v. Smolak,

,

(10th Dist. 1996), citing

Thomas v. Sun Furniture and Appliance Co.,

,

(1st Dist. 1978).

{¶14} As relevant to this case, the CSPA prohibits suppliers from

committing an unfair, deceptive or unconscionable act or practice in connection with

a consumer transaction, “whether the act or practice occurs before, during, or after

the transaction.” R.C. 1345.02(A) and 1345.03(A). There is no dispute that the

transaction at issue in this case is a consumer transaction and that RH is a supplier

as contemplated under the CSPA.

{¶15} R.C. 1345.02(A) sets forth the general prohibition on unfair or

deceptive acts or practices in connection with a consumer transaction. R.C.

1345.02(B) lists ten misrepresentations deemed to be “deceptive,” and other

subdivisions of R.C. 1345.02 specify additional conduct proscribed as unfair or

deceptive.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Unconscionable acts and practices are prohibited by R.C. 1345.03.

R.C. 1345.03(A) generally prohibits suppliers from committing an “unconscionable

act or practice” in connection with a consumer transaction. The term

“unconscionable” is not defined, but R.C. 1345.03(B) contains a list of

“circumstances” that should be considered when determining whether an act or

practice is unconscionable.

{¶17} In addition to the statutes, two other authorities can determine

what constitutes a violation of the CSPA: (1) the rules adopted by the Ohio Attorney

General and found in the Ohio Administrative Code and (2) the judiciary. See R.C.

1345.05(B)(2) and (F); Frey v. Vin Devers, Inc.,

,

(6th Dist. 1992). To keep consumers, suppliers, and the legal community

informed about the rights and responsibilities under the CSPA, the Attorney General

is directed to “[m]ake available for public inspection * * * all judgments, including

supporting opinions, by courts of this state * * * determining that specific acts or

practices violate section 1345.02 [and] 1345.03[.]” R.C. 1345.05(A)(3). These

judgments and opinions that provide notice are published in the Online Public

Inspection File (“OPIF”) on the attorney general's website. See

https://opif.ohioattorneygeneral.gov.

{¶18} The inclusion of a judgment in the OPIF file, however, does not

mean that the judgment is actually a judgment of a court determining, and thus

establishing, what is a CSPA violation. Some judgments made available in OPIF are

consent judgments that articulate the parties’ agreement that a violation has

occurred, but are not judgments based on a judicial “determination” that a violation

has occurred. See Vuyancih v. Jones & Assocs. Law Group., L.L.C.,

,

6 OHIO FIRST DISTRICT COURT OF APPEALS

(8th Dist. 2018), citing Pattie v. Coach, Inc.,

(N.D.Ohio 2014); see also Save the Lake v. Hillsboro,

,

,

(4th Dist.) (explaining that while a consent

judgment, or agreed judgment, has the effect of a final judgment, it is a contract

founded upon the agreement of the parties in which the defendant admits liability).

But see Charvat v. Teletytics, L.L.C., 10th Dist. Franklin No. 05AP-1279, 2006-Ohio-

4623 (holding that a consent judgment contains “ ‘an act or practice determined by a

court’ ” to violate the CSPA).

{¶19} Ultimately, the lack of any prior administrative or judicial rule or

determination providing notice that a specific act or practice is unfair, deceptive, or

unconscionable does not preclude a trial court from determining, based on the

evidence, that an act or practice is unfair, deceptive, or unconscionable. Hamilton v.

Ball,

,

, ¶ 36 (4th Dist.). But, generally, the lack of

specific notice does affect the consumer’s remedies for the violation. See R.C.

1345.09(B).

{¶20} Unfair or deceptive acts or practices. Frank maintains

that reasonable minds could conclude that RH engaged in two unfair and deceptive

acts: first, when it failed to disclose to Frank the limitations of its insurance before

Frank hired RH to move the fountain, and second, when RH’s employees

misrepresented after the move that RH would pay to repair the fountain damaged

during the move.

{¶21} Initially, we address Frank’s allegations concerning the insurance

nondisclosure. Frank cites no statute or code that specifically proscribes the

conduct, contending instead that courts have determined that RH’s specific conduct

7 OHIO FIRST DISTRICT COURT OF APPEALS

was unfair and deceptive. In support, he cites three cases: Brown v. Van Walsen,

Franklin C.P. No. 75CV-05 2013 (Nov. 5, 1979) (OPIF No. 10000004); Anderson v.

Ace Brothers Moving and Storage, Franklin C.P. No. 90CVH12-9780 (date unclear)

(OPIF 10000219); and Martino v. Wells Moving & Storage, Warren C.P. No.

03CV60923 (Jan. 8, 2004) (OPIF No. 10002212).

{¶22} Van Walsen involved an action for injunctive relief brought by the

Ohio Attorney General against a moving company. The parties entered into a

consent judgment that required the moving company to “affirmatively disclose, at

the time of initial contact with a consumer in regard to moving and/or storage

services, any and all limitations on the liability insurance carried by [the moving

company], the significance of such limitations and the availability of the cost of

greater insurance coverage.” The case, however, was resolved by a consent judgment

and is not considered a decision by a court, see Vujancih,

,

, and also involved licensing issues not raised in this case.

{¶23} The second case, Anderson, involved an action for damages and

injunctive relief brought by customers of a moving company. In the trial court’s

“Agreed Entry of Judgment,” the court, “by agreement of the parties,” found the

moving company, “by representing to customers that the business was bonded and

insured, when such was not the case, ha[d] committed unfair and deceptive acts in

violation of the Revised Code Section 1345.02(A),” and ordered monetary damages

and injunctive relief. This “agreed entry of judgment” appears to be in effect a

consent judgment. Further, the case is distinguishable from Frank’s case because the

defendant-mover in Anderson, unlike RH, made a false representation that the

business was bonded and insured and actually carried no insurance.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶24} The third case Frank cites, Martino, involved a judicial

determination that a moving company violated the CSPA, but the case does not

involve a violation based on an omission or misrepresentation with respect to the

moving company’s insurance coverage. Consequently, Frank’s position, that it has

been judicially determined that RH had acted unfairly or deceptively, is unfounded,

because none of the cited cases has the force of a judicial determination relating to

the claimed violation.

{¶25} Next, we review whether there are any material facts in dispute

and, if not, when the facts are construed most favorably to Frank, reasonable minds

could conclude, based on the alleged conduct, that RH had acted unfairly or

deceptively when it failed to disclose to Frank the scope of its insurance coverage at

the outset of the transaction.

{¶26} The gravamen of Frank’s complaint is that the challenged act was

deceptive. To determine whether an act or practice is deceptive, the question is

whether the supplier did or said something, regardless of intent, that has the

likelihood of inducing in the mind of a consumer a belief that was not in accordance

with the facts. Frey,

,

, cited in Lump v. Best

Door & Window, Inc., 3d Dist. Logan Nos. 8-01-09 and 8-01-10,

,

*4. See Shumaker v. Hamilton Chevrolet, Inc.,

, 2009-Ohio-

5263,

(4th Dist.). But the consumer’s perceptions must be

reasonable in light of the circumstances.

; Struna v. Convenient

Food Mart,

,

,

(8th Dist.),

citing Conley v. Lindsay Acura,

,

(10th

Dist. 1997); Knoth v. Prime Time Marketing Mgmt., Inc., 2d Dist. Montgomery No.

9 OHIO FIRST DISTRICT COURT OF APPEALS

20021,

. Ultimately, the CSPA is designed “to protect a

consumer from a supplier’s deceptions and curtail unscrupulous acts of suppliers,”

not place unreasonable and “undue burdens on suppliers.” Eisert v. Kantner

Constr., 3d Dist. Auglaize No. 2-10-13,

.

{¶27} Although Frank averred that RH’s failure to disclose the scope of

its insurance had induced him to hire RH to move the fountain, it is undisputed that

he had not asked Wallace about insurance coverage before hiring RH for the move,

and that Wallace made no misrepresentations concerning RH’s insurance with

respect to the move of the fountain. Further, it is undisputed that RH’s website

contained no representations about the scope of RH’s insurance, and that RH’s only

prehiring statement to Frank about its insurance, provided months earlier, was

vague and involved a different transaction. Finally, Frank does not allege that RH

had failed to obtain insurance that was required by law, conduct that the legislature

has specifically deemed an unfair or deceptive act or practice. See R.C. 1345.02(G).

{¶28} Based on this record, we determine no material facts are in dispute

and that no reasonable trier of fact could conclude that RH’s silence on the issue of

its insurance would likely induce in Frank’s mind a belief that RH did have insurance

for the damage that was subsequently incurred. Our determination might be

different if the facts showed that RH had repeatedly or in a more contemporaneous

transaction told Frank that the company had “full coverage” insurance. Because it

would not be reasonable for Frank to be induced by RH’s silence under the

circumstances presented, we hold that RH’s silence was not an unfair or deceptive

act or practice under the CSPA.

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} Frank argues too that a reasonable trier of fact could determine

that RH’s unfulfilled promise that it would pay for the repairs was unfair and

deceptive. We agree.

{¶30} It is undisputed that RH’s highly-touted employee Jackson told

Frank immediately after the move that RH would pay for the repairs and that Frank

was reassured the next day, during a conversation with another employee, that RH

had insurance that would cover the repairs. RH argues that Frank’s claim fails

because there are no facts in the record supporting a finding that RH knew its

representations were misleading. However, it is settled law that intent to deceive is

not a necessary element of a claimed violation of R.C. 1345.02. Sun Furniture,

,

; Lump, 3d Dist. Logan No. 8-01-09, 2002-Ohio-

1389, citing Frey,

,

. Thus, RH’s knowledge is not

relevant to the initial determination that RH committed an unfair or deceptive act as

contemplated by R.C. 1345.02(A).

{¶31} RH also contends the false statement about paying for the repairs

was insufficient because it involved a matter merely incidental to the transaction,

citing Richards v. Beechmont Volvo,

,

(1st

Dist. 1998). In Richards, a car dealership, when servicing a customer’s car, removed

the customer’s license plate frames and, without the customer’s knowledge or

consent, replaced them with frames bearing the name of the dealership.

.

The consumer sued, claiming the dealership had committed a deceptive and

unconscionable act under the CSPA.

The trial court granted summary judgment

to the dealership.

. This court affirmed, characterizing the switch-out a

“minor, incidental situation,” and explaining that “[a]lthough the replacement of the

11 OHIO FIRST DISTRICT COURT OF APPEALS

plate frames could arguably constitute a conversion, that act is not inextricably

intertwined with the consumer transaction itself [to the warranty repair and other

services performed on the car] and does not have the capacity or tendency to

deceive.”

.

{¶32} RH argues that Richards governs because its statements to Frank

about paying for the damages were not material, and thus inducing, to any choices

Frank made with respect to the consumer transaction. The Richards case, however,

is not similar to this case, which involves an actual misrepresentation by RH

involving its payment for repairs of a fountain it damaged when providing a moving

service for Frank. Because the fountain was the subject of the consumer transaction,

this misrepresentation concerning Frank’s remedy for the damage caused during

move was not completely incidental to the move, but was “inextricably intertwined”

with the consumer transaction. A deceptive act in connection with a consumer

transaction is actionable even if it occurs at the end of the transaction. See R.C.

1345.02(A) (providing that a deceptive act is actionable “whether it occurs before,

during, or after the [consumer] transaction”).

{¶33} Moreover, the misrepresentations were made before Frank had

paid for the service, and he testified that those representations induced him to remit

full payment to RH the day after the move because he believed RH would pay for the

repairs. Frank’s belief could be found reasonable, and as a result, these

misrepresentations are actionable under the CSPA as an unfair or deceptive act or

practice.

{¶34} Unconscionable acts or practices. In Frank’s final

argument in support of reversing summary judgment, he claims that a genuine issue

12 OHIO FIRST DISTRICT COURT OF APPEALS

of material fact remains as to whether RH committed an unconscionable act or

practice in violation of R.C. 1345.03(A). In determining whether an act or practice is

unconscionable, a court must consider the factors, set forth in R.C. 1345.03(B),

which generally sanction acts and practices of suppliers that “manipulat[e] a

consumer’s understanding of the nature of the transaction at issue.” Johnson v.

Microsoft Corp.,

,

,

, ¶ 24, quoted

in Hathorn v. Dana Motor, LLC, 1st Dist. Hamilton No. C-150363,

.

{¶35} Frank contends that RH, by engaging in deceptive acts, such as

falsely indicating that it would pay to repair his fountain with insurance proceeds,

also engaged in unconscionable acts and practices.

{¶36} While deceptive conduct may also be deemed to constitute an

unconscionable act, the law is clear that to establish an unconscionable act or

practice, the consumer must show a degree of knowledge sufficient to establish

scienter. State ex rel. Celebrezze v. Ferraro,

,

(2d Dist. 1989), citing Bierlein v. Bernie’s Motor Sales, Inc., 2d Dist.

Montgomery No. 9590,

(June 12, 1986); Sun Furniture,

,

. See Clayton v. McCary,

(N.D.Ohio 1976). This “ ‘actual awareness may be inferred where objective

manifestations indicate that the individual acted with such awareness.’ ”

, quoting R.C. 1345.01(E).

{¶37} Our record contains no evidence from which it can be inferred that

RH had knowledge that it was misrepresenting the facts, and Frank does not argue

otherwise. RH believed it had insurance coverage and intended to use the insurance

13 OHIO FIRST DISTRICT COURT OF APPEALS

proceeds to pay for the cost of the repairs. Therefore, RH’s misrepresentation that it

would pay to repair the fountain with insurance proceeds is not actionable as an

unconscionable act or practice.

{¶38} Next Frank argues that RH’s negligence when moving the fountain,

a one-time event, constitutes “a pattern of inefficiency and incompetency” that

constitutes an unconscionable act or practice, especially because RH had represented

that it would provide “white-glove service.” Courts have held that a supplier’s

consistent inefficient and incompetent repair of the subject of a consumer

transaction can be an unconscionable act in violation of R.C. 1345.03(A). Perkins v.

Stapleton Buick-GMC Truck, Inc., 2d Dist. Clark No. 2001 CA 10,

(June 15, 2001), citing Brown v. Lyons,

,

,

(C.P. 1974) (OPIF 10000304).

{¶39} Frank, however, has not presented any facts demonstrating the

requisite pattern central to this violation. Consequently, RH’s sole instance of

negligence in moving the fountain does not fall within the proscribed conduct and

does not constitute a pattern of inefficiency and incompetency that constitutes a

violation of R.C. 1345.03(A).

{¶40} Finally, Frank argues that reasonable minds could determine that

RH stalled and evaded its legal obligation to Frank, in violation of R.C. 1345.03(A).

“A supplier in connection with a consumer transaction who * * * continually stalls

and evades its legal obligation to a consumer[] commits an unconscionable act.”

, cited in Lump, 3d Dist. Logan No. 8-01-09,

, at *5, and

Daniels v. True,

,

(M.C. 1988).

14 OHIO FIRST DISTRICT COURT OF APPEALS

{¶41} In Brown, among other things, the supplier concealed his true

identity from consumers by using fictitious names, frequently changed the names

and locations of his business, failed to answer his phone for unreasonable lengths of

time, failed to return calls to consumers, and sold defective merchandise for which

he failed to honor warranties.

. In Daniels, the supplier “falsely held

himself out as a corporation, listed his address at a location he had not occupied over

three years, and failed to respond to repeated phone calls and messages regarding”

the construction of a garage, which the supplier never completed after accepting

payment.

.

{¶42} Frank contends that RH’s statements that it would pay for the

repairs and that it had insurance to do so, followed by its later refusal to pay for the

repairs, which necessitated this lawsuit, established that RH continually stalled and

evaded its legal obligation to him. But unlike in Brown and Daniels, the evidence

here is not sufficient to support an inference that RH was continually stalling or

evading its legal obligation to Frank. Instead, the record shows that RH was

attempting to satisfy any legal obligation, but was unaware that it lacked insurance to

pay for the repairs. The extent of RH’s legal obligation to Frank for its negligence

when moving the fountain will be determined at trial, including whether that

obligation includes damages in an amount exceeding the cost of the fountain.

III. Conclusion

{¶43} A genuine issue of material fact exists regarding whether RH

violated the deceptive acts or practices provision of the CSPA by representing to

Frank, before Frank paid for RH’s services related to the move of the fountain, that

RH would pay to repair the fountain that was damaged by RH’s employees during

15 OHIO FIRST DISTRICT COURT OF APPEALS

the move, and then later refusing to pay for the repair after learning it lacked

insurance coverage for the repair. Accordingly, we sustain Frank’s sole assignment

of error, reverse the trial court’s judgment, and remand the cause for further

proceedings consistent with this opinion.

Judgment reversed and cause remanded.

BERGERON, P.J., and CROUSE, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

16