author: Hoover, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Gregory S. STRALEY, Defendant-Appellant.
    No. 17CA4
    Court of Appeals of Ohio, Fourth District, Highland County.
    RELEASED July 27, 2018
    Gregory S. Straley, Chillicothe Correctional Institution, Chillicothe, Ohio, pro se appellant.
    Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} Defendant-appellant, Gregory S. Straley, appeals from the judgment of the Highland County Court of Common Pleas denying his post-sentence motion to withdraw his guilty plea. Because the trial court abused its discretion by denying the motion based on res judicata when it imposed a void sentence that improperly consisted of a non-mandatory prison term, we reverse the judgment and remand for further proceedings.

I. Facts and Procedural Posture

{¶ 2} In September 2008, the Highland County Grand Jury returned an indictment charging Straley with 14 counts, including five counts of sexual battery, four counts of gross sexual imposition, four counts of rape, and one count of illegal use of a minor in nudity-oriented material or performance. Straley initially pleaded not guilty to all of the charges.

{¶ 3} In January 2009, Straley, who was represented by counsel, withdrew his not-guilty plea and in return for the dismissal of the remaining counts, pleaded guilty to two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4), third-degree felonies, three counts of sexual battery in violation of R.C. 2907.03(A)(5), second-degree felonies, two counts of gross sexual imposition in violation of R.C. 2907.05(A)(1), fourth-degree felonies, and one count of sexual battery in violation of R.C. 2907.03(A)(5), a third-degree felony. The written plea form included a handwritten "No" in the "Prison Term is Mandatory/Consecutive" column for each of the offenses, and an agreed prison sentence of various terms to be run consecutively for an aggregate term of 35 years and 10 months.

{¶ 4} At the plea hearing, the trial court in its Crim.R. 11 colloquy emphasized to Straley that none of the sentences were mandatory:

THE COURT: Okay. Now, under the law none of these sentences are mandatory, meaning that you have to be sent to prison. Some cases there are mandatory prison sentences where community control is not permitted. Community control is permitted by law in this case. It's not recommended and it's improbable that even if it were recommended that it would be granted. * * * So, you understand that that is legally possible, although it's not going to happen in this case?
MR. STRALEY: Yes, Your Honor.

{¶ 5} In one of the gross sexual imposition counts he pleaded guilty to, Straley was charged with knowingly having sexual contact with K.S. beginning on or about January 1, 2005 and continuing through April 30, 2007, on Antioch Road in Highland County, with K.S. being less than 13 years old during that period. The three second-degree sexual battery counts that Straley pleaded guilty to also involved the same victim during the same period and at the same location, i.e. they occurred when the victim was less than 13 years old and included a period on or after August 3, 2006.

{¶ 6} The trial court accepted Straley's plea and convicted him of the offenses. It then proceeded to sentence him to the agreed aggregate prison term of 35 years and 10 months, which included consecutive seven-year terms for each of the second-degree felony sexual battery convictions. The trial court then issued a judgment entry reflecting the sentence. In its sentencing entry, the trial court specified that "a mandatory prison term * * * is not * * * required by [R.C.] 2929.13(F)." The trial court did not mention any sex-offender classification.

{¶ 7} On appeal, Straley, represented by counsel, raised several assignments of error, including that "THE TRIAL COURT ERRED BY IMPOSING A MANDATORY SENTENCE WITHOUT ADVISING THE APPELLANT THAT THE SENTENCE WAS MANDATORY." We overruled Straley's assignments of error and affirmed the trial court's judgment. State v. Straley , 4th Dist. Highland No. 09CA4, 2009-Ohio-6170, 2009 WL 4021379 (" Straley I "). For his assignment of error concerning the trial court's purported imposition of a mandatory sentence, we held that because the sentence was agreed to by the parties, it was not reviewable under R.C. 2953.08(D)(1). Id. at ¶¶ 23-26.

{¶ 8} The trial court later issued a nunc pro tunc sentencing entry to add his sex-offender classification. In its March 2012 nunc pro tunc entry, the trial court reiterated that "a mandatory prison term * * * is not * * * required by [R.C.] 2929.13(F)." Subsequent appeals involved the trial court's sex offender classification of Straley. See State v. Straley , 4th Dist. Highland No. 12CA3, 2013-Ohio-3334, 2013 WL 3949160 (" Straley II "); State v. Straley , 4th Dist. Highland No. 13CA30, 2014-Ohio-5110, 2014 WL 6453961 (" Straley III ").

{¶ 9} In April 2017, Straley filed a Crim.R. 32.1 motion to withdraw his guilty plea. He claimed that res judicata did not apply to his motion and that his guilty plea was invalid because the trial court's sentence on his three second-degree felony sexual battery convictions was void because it imposed a non-mandatory prison sentence when a mandatory prison sentence was required. The State filed a response; and Straley submitted a reply to the response.

{¶ 10} The trial court denied the motion, finding that res judicata barred it. In the alternative, the court found that Straley had not established a manifest injustice because he did not allege that at the time of his plea, he was unaware that the sentences for his second-degree felony sexual battery charges were mandatory or that he would not have entered a guilty plea had he known of their mandatory nature; and he waited eight years to file his motion.

II. Assignments of Error

{¶ 11} Straley assigns the following errors for our review:

I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING THE MOTION TO WITHDRAW BY APPLYING RES JUDICATA TO A VOID SENTENCE.
II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DETERMINING A MANIFEST INJUSTICE HAD NOT OCCURRED.

III. Law and Analysis

A. Standard of Review

{¶ 12} Straley contests the trial court's denial of his post-sentence motion to withdraw his guilty plea. "A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice." State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus; State v.Ogle , 4th Dist. Hocking No. 13CA18, 2014-Ohio-2251, 2014 WL 2442247, ¶ 8. A manifest injustice is a clear and openly unjust act; it relates to a fundamental flaw in the proceedings resulting in a miscarriage of justice or a deprivation of due process. See State ex rel. Schneider v. Kreiner , 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998) ; Ogle at ¶ 8 ; State v. Hall , 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939, 2003 WL 22976587, ¶ 12. "This is an 'extremely high standard' that permits a defendant to withdraw his plea 'only in extraordinary cases.' " State v. Walton , 4th Dist. Washington No. 13CA9, 2014-Ohio-618, 2014 WL 705418, ¶ 10, quoting State v. Darget , 4th Dist. Scioto No. 12CA3487, 2013-Ohio-603, 2013 WL 658664, ¶ 21.

{¶ 13} The decision to grant or deny a Crim.R. 32.1 postsentence motion to withdraw a guilty plea is committed to the sound discretion of the trial court; thus appellate review of the denial of the motion is limited to a determination of whether the trial court abused its discretion. Walton at ¶ 11 ; see also Smith at paragraph two of the syllabus ("A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the trial court, and the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court."). "A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary." State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

B. Res Judicata Did Not Bar Straley's Motion to Withdraw

{¶ 14} In his first assignment of error, Straley asserts that the trial court abused its discretion by denying the motion to withdraw by applying res judicata to a void sentence. The State initially counters that the trial court correctly applied res judicata based on our decision in Straley I .

{¶ 15} As its primary rationale for denying Straley's post-sentence motion to withdraw his guilty plea, the trial court held that it was barred by res judicata because he raised it in his prior appeal in Straley I .

{¶ 16} Res judicata generally bars defendants from raising claims in a Crim.R. 32.1 postsentence motion to withdraw a guilty plea that they either raised or could have raised in a direct appeal from their conviction. See State v. Snyder , 2017-Ohio-8091, 96 N.E.3d 833, ¶ 29 (4th Dist.), quoting State v. Mackey , 4th Dist. Scioto No. 14CA3645, 2014-Ohio-5372, 2014 WL 6877056, ¶ 15 (" 'Courts, including this one, have applied res judicata to bar defendants from raising claims in a Crim.R. 32.1 postsentence motion to withdraw that they either raised or could have raised in a direct appeal from their judgment of conviction and sentence' "); State v. Ketterer , 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 59 ("Ohio courts of appeals have applied res judicata to bar the assertion of claims in a motion to withdraw a guilty plea that were or could have been raised at trial or on appeal").

{¶ 17} In Straley I , Straley unsuccessfully raised the issue of whether the trial court erred regarding the mandatory nature of his prison term for his three second-degree felony sexual battery convictions. The trial court and the State understandably relied upon our holding in Straley I .

{¶ 18} Nevertheless, the Supreme Court of Ohio has held that " '[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.' " State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 20, quoting State v. Beasley , 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). This precept necessarily follows from the trial court's role at sentencing, which is to impose a sentence provided for by statute; " '[a] court has no power to substitute a different sentence for that provided by statute or one that is either greater or lesser than that provided for by law.' " Williams at ¶ 20, quoting Colegrove v. Burns , 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964).

{¶ 19} The Supreme Court of Ohio's void-sentence jurisprudence " 'reflects a fundamental understanding of constitutional democracy' that the power to define criminal offenses and prescribe punishment is vested in the legislative branch of government and that courts may impose sentences only as provided by statute." Williams at ¶ 22, quoting State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶¶ 21-22. "Because '[n]o court has the authority to impose a sentence that is contrary to law,' * * * when the trial court disregards statutory mandates, '[p]rinciples of res judicata, including the doctrine of the law of the case, do not preclude appellate review. The sentence may be reviewed at any time, on direct appeal or by collateral attack.' " Williams at ¶ 22, quoting Fischer at ¶¶ 23, 30 ; State v. Walker , 8th Dist. Cuyahoga No. 105350, 2017-Ohio-7609, 2017 WL 4075212, ¶ 13.

{¶ 20} The trial court sentenced Straley to an aggregate prison term of 35 years and 10 months. Included within the sentence was the trial court's imposition of 21 years in prison for his three convictions for second-degree felony sexual battery. Because the victim of these sexual battery offenses was less than 13 years of age at the time of the offenses and they were committed on or after August 3, 2006, R.C. 2929.13(F)(3)(c)(ii) required a mandatory prison term for them. See, e.g., State v. Stephen , 7th Dist. Belmont No. 14 BE 0037, 2016-Ohio-4803, 2016 WL 3573240, ¶ 11 (" R.C. 2929.13(F)(3) provides in pertinent part that a prison term is mandatory for a sexual battery conviction 'if the victim is less than thirteen years of age.' "); see also R.C. 2907.03(B) ("Whoever violates this section is guilty of sexual battery. * * *If the other person is less than thirteen years of age, sexual battery is a felony of the second degree, and the court shall impose upon the offender a mandatory prison term equal to one of the prison terms prescribed in section 2929.14 of the Revised Code for a felony of the second degree.").

{¶ 21} Instead, the trial court ignored R.C. 2929.13(F)(3) and sentenced Straley to non-mandatory terms on these sexual battery convictions. Therefore, because the trial court disregarded the statutory mandate of R.C. 2929.13(F)(3), its sentence for these convictions was void and not subject to res judicata notwithstanding what Straley raised or could have raised in Straley I .

{¶ 22} The State next argues that any error by the trial court in relying on res judicata was harmless because it imposed an agreed sentence pursuant to R.C. 2953.08(D)(1), which provides that "[a] sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge."

{¶ 23} In Straley I , we determined that R.C. 2953.08(D)(1) applied; and thus we held that we did not have authority to review Straley's assignment of error concerning the trial court's purported imposition of a mandatory sentence. Straley I at ¶¶ 23-26. Of note, we stated that Straley's sentence was authorized by law because it was within the statutory range of available sentences. Id. at ¶ 25. However, following the release of Straley I , the Supreme Court of Ohio defined a sentence "authorized by law" to mean more than whether the sentence falls with the statutory range for the offense:

We do not agree with such a narrow interpretation of "authorized by law." Adopting this reasoning would mean that jointly recommended sentences imposed within the statutory range but missing mandatory provisions * * * would be unreviewable. Our recent cases illustrate that sentences that do not comport with mandatory provisions are subject to total resentencing. * * * Nor can agreement to such sentences insulate them from appellate review, for they are not authorized by law. We hold that a sentence is "authorized by law" and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions. A trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions. See State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 27 ("Every judge has a duty to impose lawful sentences").

State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶¶ 20-21.

{¶ 24} Underwood , in effect, abrogated our holding in Straley I as it pertains to the assignments of error challenging his sentence. Here, we have already stated that the trial court was statutorily required to impose mandatory prison terms for the three second-degree felony sexual battery counts. Thus, the trial court's failure to follow the mandatory statutory provisions rendered Straley's sentence void, and unauthorized by law. Again, although the State's reliance on Straley I 's rationale is understandable, the State's claim that the agreed sentence could not be reviewed is meritless.

{¶ 25} The State next contends that any error by the trial court in failing to advise Straley that he would be subject to mandatory prison terms for the three counts of second-degree felony sexual battery charges and its failure to sentence him to the required mandatory terms did not prejudice him because he understood that he would be serving an aggregate prison term of 35 years and 10 months.

{¶ 26} We reject the State's contention because Straley did not understand that R.C. 2929.13(F)(3) required a mandatory prison term for the 21 years of the sentence associated with the second-degree felony sexual battery charges. The trial court's failure to follow that statutory mandate prejudiced Straley because it rendered his sentence void so that he has not yet been properly and legally sentenced in the underlying case.

{¶ 27} The trial court thus abused its discretion by denying Straley's motion to withdraw his guilty plea based on res judicata. We sustain Straley's first assignment of error.

C. Straley Established a Manifest Injustice Warranting Withdrawal of his Guilty Plea

{¶ 28} In his second assignment of error, Straley asserts that the trial court abused its discretion by determining that a manifest injustice had not occurred. As an alternative rationale for its denial of Straley's motion to withdraw his guilty plea, the court found that Straley had not established a manifest injustice because he did not allege that at the time of his plea, he was unaware that the sentences for his second-degree felony sexual battery charges were mandatory or that he would not have entered a guilty plea had he known of their mandatory nature, and he waited eight years to file his motion.

{¶ 29} As previously discussed, a manifest injustice is a clear and openly unjust act; it relates to a fundamental flaw in the proceedings resulting in a miscarriage of justice or a deprivation of due process. Schneider , 83 Ohio St.3d 203, 208, 699 N.E.2d 83. It is difficult to fathom a more fundamental flaw in proceedings than when a court imposes an illegal, void sentence on a defendant. See Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22, citing Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶¶ 21-22 (void-sentence jurisprudence reflects a fundamental understanding of constitutional democracy that courts may impose sentences only as provided by statute).

{¶ 30} In State v. Whitfield , 4th Dist. Scioto No. 14CA3615, 2015-Ohio-4139, 2015 WL 5783398, we addressed a comparable question. In that case, in accordance with a plea agreement, the defendant pleaded guilty to one count of drug trafficking, which required a mandatory prison sentence, but the trial court sentenced him to an illegal hybrid (part mandatory, part non-mandatory) sentence. After the trial court denied the defendant's pro se post-sentence motion to withdraw his guilty plea, we reversed, finding at ¶¶ 12-13, that he had established a manifest injustice entitling him to withdrawal of his guilty plea:

Despite the absence of a transcript in the record, we believe that it is evident from the trial court's October 11, 2013 sentencing entry and February 28, 2014 judgment that overruled appellant's motion to withdraw guilty plea that appellant was led to believe that only six of his nine year sentence is mandatory. In fact, under Ware the entire nine years are mandatory.
It may well be that appellant would have accepted the plea agreement even if it had been explained that the agreed nine year sentence was all mandatory. However, this misunderstanding is sufficient to persuade us that a manifest injustice has occurred for purposes of Crim.R. 32.1. Thus, we hereby sustain appellant's second assignment of error.

{¶ 31} In this case, the trial court misadvised Straley that his entire 35 year, 10 month agreed prison sentence was non-mandatory even though R.C. 2929.13(F)(3) made 21 years of that sentence mandatory. The trial court then set forth the erroneous, illegal sentence in its judgment entry.

{¶ 32} Regarding the trial court's finding and the State's claim that Straley's undue delay of over eight years justified the court's denial of his Crim.R. 32.1 motion, we disagree. Because his sentence was void in that it included 21 years of non-mandatory prison time for his three second-degree felony sexual battery convictions, he is permitted to contest the sentence at any time. See Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 22, quoting Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 30 (void " 'sentence may be reviewed at any time, on direct appeal or by collateral attack' ").

{¶ 33} Therefore, consistent with Whitfield and void-sentence jurisprudence, the trial court abused its discretion by denying Straley's post-sentence motion to withdraw his guilty plea. Res judicata did not bar his motion; and he established a manifest injustice. See also Whitfield at ¶ 15 (Harsha, J. concurring) ("res judicata does not apply because a void judgment is subject to collateral attack at any time").

{¶ 34} We are completely cognizant of the absurdity of this result-especially with Straley waiting approximately eight years to file his motion to withdraw his guilty plea from an agreed upon sentence; however, we, as an intermediate appellate court, are bound by the law as set forth by the Ohio Legislature and the Supreme Court of Ohio's interpretation of that law. Although we personally may not agree with the result set forth in this decision, we must sustain Straley's second assignment of error.

IV. Conclusion

{¶ 35} Having sustained Straley's first and second assignments of error, we reverse the judgment of the trial court denying his motion to withdraw his guilty plea and remand the cause to that court for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED.

Harsha, J.: Concurs with Concurring Opinion.

Abele, J.: Dissents with Dissenting Opinion.

Harsha, J.: Concurs with Concurring Opinion.

{¶ 36} I agree that our result seems absurd, but that we must apply the law as pronounced by the Supreme Court of Ohio. I also note that the real absurdity here is the fact that if Straley had taken a direct appeal and won, his sentence would have been vacated but his conviction would have remained in effect. Only the illegal sentence was void. See Fischer at ¶ 29. Here he waits 8 years, makes a motion to withdraw his plea based upon the imposition of an illegal, i.e. void, sentence. Now his motion to withdraw his plea must be granted, and his conviction vacated based upon the Supreme Court of Ohio's determination that a trial court's failure to follow a mandatory sentencing provision results in the sentence not simply being erroneous and thus voidable, but rather, void ab initio. Accordingly, such an error need not be raised on direct appeal, but is subject to collateral attack at any time, by a motion to vacate.

{¶ 37} Ohio should return to the traditional approach correcting such legal errors and declare them to be errors in the exercise of jurisdiction, not ones that divest a court of the power to make such mistakes. See Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992.

Abele, J.: Dissents with Dissenting Opinion.

{¶ 38} The absurd result in this case is regrettable, unfortunate and difficult to believe. Any attempt to explain this result to a member of the general public will certainly be met with an expression of incredulity.

{¶ 39} In this case the appellant, with the assistance of counsel and pursuant to the parties' plea agreement, pled guilty to eight counts of gross-sexual imposition and sexual battery, all involving a victim under thirteen years of age. In conformance with the parties' agreement, the trial court sentenced the appellant to serve thirty-five years and ten months in prison. At that time, the appellant was fully aware and in full agreement with the sentence. The problem, unbeknownst to anyone at that time, is that the trial court, as it attempted to navigate through the labyrinth we call Ohio's felony sentencing statutes, is that the court indicated that the sentence is non-mandatory when, in fact, mandatory sentences apply.

{¶ 40} Eight years later, appellant filed a motion to withdraw his guilty pleas. Appellant argued, citing Ohio Supreme Court decisions, that the trial court's failure to follow mandatory statutory provisions results in sentences that are unauthorized by law, and thus void. I believe that the root of the problem is the supreme court's characterization of errors in sentencing as void judgments. Generally, a void judgment is one that a court issues when it lacks jurisdiction over the parties or the subject matter, or if a court lacks the inherent power to enter a particular judgment. This is not the situation when Ohio common pleas courts issue felony sentences, unless, for example, the court exceeds the maximum sentence or somehow strays beyond the court's specific jurisdiction. That did not happen here. Obviously, the appellant is entitled to a remedy to correct his sentence, or to see that he receives the benefit of his bargain. However the withdrawal of appellant's plea at this juncture does not serve the interests of justice.

      The State does not argue that the imposition of non-mandatory prison sentences for these convictions was not precluded by R.C. 2929.13(F).


source: Caselaw Access Project

author: DIANE V. GRENDELL, J.

license: Public Domain

text:
    Robbie SANKEY, Plaintiff-Appellant, v. Lois A. Bernardo FASANO, et al., Defendants-Appellees.
    NO. 2018-A-0025
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided August 6, 2018
    Robbie Sankey, pro se, PID# A693-244, Trumbull Correctional Institution, P.O. Box 640, 5701 Burnett Road, Leavittsburg, OH 44430 (Plaintiff-Appellant).
    Francis P. Manning, Manning & Clair, 38040 Euclid Avenue, Willoughby, OH 44094 (For Defendants-Appellees).
   DIANE V. GRENDELL, J.

{¶ 1} Plaintiff-appellant, Robbie Sankey, appeals from the judgment of the Ashtabula County Court of Common Pleas, dismissing his lawsuit with prejudice for failure to prosecute. The issue to be determined by this court is whether a court can dismiss a civil case filed by an incarcerated individual for failure to prosecute when he was unable to physically appear at trial and no alternative methods for appearance were considered. For the following reasons, we reverse the judgment of the lower court and remand for further proceedings consistent with this opinion.

{¶ 2} On June 7, 2017, Sankey filed a Complaint against defendants-appellees, Lois and Amico Fasano. It alleged that Lois Fasano forged a fraudulent "Quiet Claim Deed of Conveyance of Land" (sic) in relation to certain property located in Ashtabula and that Amico Fasano did "knowingly notarize" the fraudulent deed.

{¶ 3} The Fasanos filed an Answer on July 10, 2017.

{¶ 4} On the same date, Sankey filed a "Motion to Appear at Hearing Via Skype Video, Jammer, or 'Writ Testificandum,' " noting that he was unable to appear in person due to his incarceration. On October 17, 2017, a Magistrate's Order was filed allowing Sankey to appear via telephone for a mediation hearing.

{¶ 5} On November 15, 2017, Sankey moved to be permitted to appear at the pretrial hearing. A Magistrate's Order allowed him to appear via telephone.

{¶ 6} Sankey filed a Motion for Summary Judgment on December 1, 2017, which was opposed by the Fasanos. On January 31, 2018, the trial court denied the Motion for Summary Judgment since there was a genuine issue of material fact.

{¶ 7} Sankey filed a Motion for Order to Convey on February 2, 2018, requesting to be conveyed to the court for the trial scheduled on February 6.

{¶ 8} A Magistrate's Order was issued on the same date, following a pretrial hearing. The Order stated that "[d]ue to Plaintiff's incarceration in a State prison facility, it was made clear to the Plaintiff that the court is requiring him to be present to prosecute his case and will not allow the trial to proceed by way of a telephone connection from the prison facility." The Order stated that "[a] failure to prosecute this action may result in its Dismissal."

{¶ 9} Pursuant to a February 6, 2018 Magistrate's Order, on the date of the trial, as previously instructed, Sankey called the court to confirm he could not be present in person for the trial. Sankey moved to hold the trial at the prison, continue the trial, or dismiss the case without prejudice. The magistrate denied each of these motions.

{¶ 10} On February 21, 2018, two weeks after the trial date, the court issued a Judgment Entry in which it denied Sankey's Motion to Convey, noting the cost, need for extra security, and the late date of the motion's filing. The court noted that at the trial, defense counsel moved to dismiss, emphasized that "Plaintiff was previously put on notice that the case would proceed to trial on February 6th, 2018, and that it was his responsibility to be present to prosecute his case." The court dismissed the case with prejudice for failure to prosecute. Subsequent Objections to Magistrate's Order filed by Sankey were denied.

{¶ 11} On February 26, 2018, Sankey filed a Notice of Dismissal which was overruled by the trial court on March 5, 2018, since a final disposition had occurred.

{¶ 12} Sankey timely appeals and raises the following assignments of error:

{¶ 13} "[1.] The Court erred in not permitting the Plaintiff to prosecute his case at trial.

{¶ 14} "[2.] The Court erred by dismissing the Plaintiff's case for want of prosecution with Prejudice."

{¶ 15} We will consider Sankey's assignments of error jointly, as they both relate to his inability to proceed with his case and its dismissal.

{¶ 16} As an initial matter, we note that Sankey argues that the court's decision was based, at least in part, upon bias against him and that the judge should have recused herself.

{¶ 17} The proper procedure for raising an issue of bias of a court of common pleas judge is to "file an affidavit of disqualification with the clerk of the supreme court * * *." R.C. 2701.03(A). Sankey asserts that he did so and the Supreme Court "chose to believe the Judge Affidavit and did not recuse her." "Pursuant to R.C. 2701.03, the determination of a claim that a common pleas judge is biased is within the exclusive jurisdiction of the Chief Justice of the Supreme Court of Ohio." Aloi v. Enervest , 11th Dist. Portage No. 2011-P-0023, 2011-Ohio-5112, 2011 WL 4563650, ¶ 3 ; State v. Jackson , 2015-Ohio-6, 26 N.E.3d 304, ¶ 20 (11th Dist.) (appellate courts lack jurisdiction to review the Supreme Court's determination on the issue of bias). Thus, "an appellate court has no jurisdiction to vacate a trial court's judgment on a claim of judicial bias." Petralia v. Petralia , 11th Dist. Lake No. 2002-L-047, 2003-Ohio-3867, 2003 WL 21688251, ¶ 20.

{¶ 18} Sankey argues that the court erred by not allowing him to prosecute his case at trial via telephone or another method such as Skype and by dismissing his case for failure to prosecute since he did not physically appear at the trial.

{¶ 19} The dismissal of a complaint for failure to prosecute is reviewed for an abuse of discretion. Jones v. Hartranft , 78 Ohio St.3d 368, 371, 678 N.E.2d 530 (1997). The decision whether to permit an incarcerated party to attend a civil proceeding has been evaluated under the same standard. Faith v. Scuba , 11th Dist. Geauga No. 2007-G-2767, 2007-Ohio-6563, 2007 WL 4292740, ¶ 16-17.

{¶ 20} Initially, the Fasanos contend that the trial court properly denied Sankey's request to attend the trial, citing to Mancino v. Lakewood , 36 Ohio App.3d 219, 523 N.E.2d 332 (8th Dist. 1987). "An incarcerated individual does not have a constitutional right to be present at a civil trial or hearing." (Citation omitted.) Faith at ¶ 18 ; Lopshire v. Lopshire , 11th Dist. Portage No. 2008-P-0034, 2008-Ohio-5946, 2008 WL 4901772, ¶ 35. However, courts may permit attendance at a hearing following an evaluation of various factors, including the cost of transporting the prisoner, whether the claim has merit and can be intelligently argued by the prisoner, and the danger of transporting the prisoner. Mancino at 222, 523 N.E.2d 332. There is no question that the lower court considered these factors in the present matter, finding that transporting Sankey would be costly, create additional security concerns, and there was not sufficient notice prior to trial to grant the motion. The Fasanos' main argument in their appellate brief is that there was not an abuse of discretion in that decision, a contention with which we do not disagree. Sankey, however, primarily argues not that the court erred in disallowing him to be transported to court for the trial but that he should have been permitted to participate in some manner, such as by phone, or, at the least, his case should have been dismissed without prejudice. The question, then, is whether, by denying Sankey any opportunity to litigate his case, the lower court abused its discretion in dismissing for failure to prosecute.

{¶ 21} Dismissal of actions for failure to prosecute is governed by Civ.R. 41(B)(1) which states: "Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim."

{¶ 22} In general, there is no question that Sankey was an active participant in these proceedings, filed various motions, completed discovery, and repeatedly requested to be able to participate by several methods, including via telephone or Skype. It was evident from the beginning of the proceedings that he would be incarcerated throughout this matter. He also moved prior to dismissal for options such as holding the trial at the jail, granting a continuance, or dismissing the matter without prejudice. The dismissal for failure to prosecute was related solely to the fact that Sankey was unable to appear at trial as was required by the court.

{¶ 23} Several appellate districts have held that a court cannot dismiss a civil complaint from an incarcerated individual based solely on the fact that the individual is incarcerated. Where an action was dismissed for failure to prosecute due to the inmate's incarceration and inability to appear at a hearing, and the inmate had been an active participant in the proceedings, this court found that "[d]ismissing the action with prejudice without considering less drastic alternatives did not advance the judicial principle of deciding cases on the merits." Jordan v. Ivanchak , 11th Dist. Trumbull No. 88-T-4102, 1989 WL 152691, *4 (Dec. 15, 1989). See Tokles & Son, Inc. v. Midwestern Indem. Co. , 65 Ohio St.3d 621, 632, 605 N.E.2d 936 (1992) (the law favors the disposition of cases on their merits). Thus, the trial court abused its discretion by failing to "attempt[ ] a less drastic remedy which would give plaintiff his day in court." Id.

{¶ 24} Similarly, in Freeman v. Kimble-Freeman , 8th Dist. Cuyahoga No. 79287, 2001 WL 1671430 (Nov. 29, 2001), the court held that the "dismissal of a pro se inmate's complaint for want of prosecution where no means of appearance is available is an abuse of the trial court's discretion." Jordan at *4. In reaching that holding, it was emphasized that the trial court had at its disposal means of addressing the problem, such as a telephonic conference or stay of proceedings until the appellant could obtain counsel or was released from prison. Id. See also Porter v. Rose , 8th Dist. Cuyahoga No. 79697, 2002-Ohio-3432, 2002 WL 1453820, ¶ 18 ("[W]e question whether a trial court may dismiss a civil complaint from an incarcerated pro se defendant without first considering other methods of providing the complainant access to the courts."). Alternatives that should be considered by a court before dismissal with prejudice include a bench trial in the prison, video or telephone conferencing, postponement if release is imminent, and "dismissal without prejudice leaving open the possibility of the plaintiff's refiling his case at a later date." Laguta v. Serieko , 48 Ohio App.3d 266, 267, 549 N.E.2d 216 (9th Dist. 1988).

{¶ 25} Finally, in Harden v. Dayton , 2d Dist. Montgomery No. 22072, 2008-Ohio-1599, 2008 WL 867734, cited by Sankey, the court noted that "a dismissal under Civ.R. 41(B)(1) for failure to prosecute should be a last resort in a case like the one before us," where the appellant "had requested discovery, appointment of counsel, and continuances on multiple occasions." Id. at ¶ 30. Since trial courts should be "imaginative and innovative" in dealing with this type of case, the trial court must consider "alternative, less punitive ways to address the logistical problems associated with a pro se litigant" who is incarcerated. (Citation omitted.) Id. at ¶ 29 and 31 ; M.C. v. S.L. , 10th Dist. Franklin No. 13AP-917, 2014-Ohio-3338, 2014 WL 3805758, ¶ 11.

{¶ 26} While the Fasanos argue that Harden is distinguishable because it related to a civil rights violation occurring at the time of the defendant's arrest, its general principles are applicable to civil cases and are also consistent with the extensive case law cited above. Further, to the extent that the Fasanos argue Sankey did not move for appointed counsel, it does not follow that all of the other methods for proceeding with his case discussed above should not have been adequately considered.

{¶ 27} We find nothing in the record to indicate why the court failed to allow alternate methods for hearing this case, although it was evident Sankey attempted to advance alternatives to physical appearance. The February 2, 2018 Magistrate's Order indicates that "it was made clear to Plaintiff that the Court is requiring him to be present to prosecute his case and will not allow the trial to proceed by way of a telephone connection from the prison facility," but fails to provide an explanation of why this was the case. There is no question that the court had the physical capability to do so, given that it allowed Sankey to appear in such a manner both for mediation and pretrial hearings. As explained in the litany of cases above, the courts should provide alternative means to an incarcerated individual rather than dismissing solely due to his failure to appear in person.

{¶ 28} It is also unclear why the court dismissed this matter with prejudice when it could have stayed the proceedings or even dismissed without prejudice, as Sankey requested. The Fasanos note that Sankey is due to be released several months prior to the expiration of the statute of limitations for a fraud claim, so it appears he could have timely refiled his claims. Such opportunity was taken away from him by the trial court.

{¶ 29} The Fasanos argue that since no transcript was filed, we should presume the regularity of the proceedings below. They raise this claim, however, in relation to the court's consideration of the Mancino factors regarding the transport of a prisoner for trial. As noted above, we find no error in the court's holding as to that issue. The Fasanos are also unclear as to what transcripts should have been provided and it is not evident whether any record of the pretrial hearings where these matters would have been discussed was made. In any event, as noted above, the court's own statements appear to indicate that it determined the failure to be physically present in court alone provided grounds for dismissal, even though it appears other methods for trial were available to the court. The court failed to address any of these issues in its judgment entries and magistrate orders addressing Sankey's various requests for the court to provide an alternative method to hear his claims. A court speaks through its judgment entries and its failure to provide any basis for its decisions makes it impossible to determine whether the court considered any of the alternatives to dismissal, let alone its reasons for rejecting these alternatives. See Dvorak v. Dvorak , 11th Dist. Portage No. 2006-P-0003, 2006-Ohio-6875, 2006 WL 3772295, ¶ 13.

{¶ 30} Since the lower court failed to consider alternatives to dismissal with prejudice, we reverse its decision. Upon remand, the trial court should consider alternatives to dismissal, such as the possibility of allowing Sankey to appear before the court in a method other than physical presence at the courthouse or, if such appearance is not possible, dismissal of the case without prejudice.

{¶ 31} The first and second assignments of error are with merit.

{¶ 32} For the foregoing reasons, the judgment of the Ashtabula County Court of Common Pleas, dismissing Sankey's case for failure to prosecute, is reversed and this matter is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee.

CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.


author: PIPER, J.

text:
    GRIFFIN CONTRACTING AND RESTORATION, Plaintiff-Appellee, v. Susan MCINTYRE, et al., Defendants-Appellants.
    NO. CA2017-11-058
    Court of Appeals of Ohio, Twelfth District, Clermont County.
    August 6, 2018
    Maria K. Ante, 7000 Houston Road, Suite 38, Florence, KY, 41042, for plaintiff-appellee
    Becker & Cade, Dennis A. Becker, 526 A Wards Corner Road, Loveland, Ohio, 45140, for defendants-appellants
   PIPER, J.

{¶ 1} On August 4, 2015, plaintiff-appellee, Griffin Contracting and Restoration, LLC ("Griffin"), filed a complaint in the Small Claims Division of the Clermont County Municipal Court asserting a claim for breach of contract. Defendants-appellants, Susan and Jack McIntyre ("McIntyres"), answered and filed counterclaims asserting a right to rescind the contract pursuant to the Home Solicitation Sales Act ("HSSA"), and alternatively, rescission and damages pursuant to the Consumer Sales Practices Act ("CSPA"). The McIntyres also moved to transfer the case to the Clermont County Court of Common Pleas. The municipal court granted the motion and transferred the case to the common pleas court. The case proceeded to trial on October 2, 2017, and the trial court found in favor of Griffin on its breach of contract claim. The trial court further found the HSSA inapplicable. However, the trial court did find several CSPA violations and awarded damages to the McIntyres. The trial court offset the parties' damages with the result being a judgment in favor of the McIntyres.

{¶ 2} The McIntyres appeal the trial court's decision awarding them damages for less than the amount they sought to recover by way of their counterclaims against Griffin. Additionally, the McIntyres also appeal the trial court's findings with respect to their counterclaims brought pursuant to the HSSA and CSPA.

{¶ 3} On July 24, 2014, the McIntyres' home sustained fire and smoke damage. The fire damage was contained to the master bathroom where an electrical outlet caught fire. The master bathroom, master bedroom, and walk-in closet, all incurred smoke damage. Susan contacted the family's home insurer, Pekin Insurance ("Pekin"), and made a claim. Pekin assigned Jessica Henson, a claims adjuster, to administer said claim. Later that afternoon, Henson responded to the McIntyres' residence to investigate the claim. Henson testified that she provided Susan the names of two contractors to initiate repairs. Henson attempted to call the first contractor, but nobody answered. Henson then contacted Griffin. She placed the call from her cell phone, while still present at the McIntyre residence. It is unclear whether, and to what extent, Susan participated in the call to Griffin. In her deposition, Susan testified that Henson made all the phone calls. However, Susan testified at trial that she was unsure if Henson's cell phone was on speakerphone.

{¶ 4} A representative from Griffin responded to the McIntyre residence shortly after Henson departed. The Griffin representative met with Susan. The record does not reflect the substance of this conversation. Afterward, Susan signed an Emergency Service Authorization, electing to have Griffin initiate emergency repairs.

{¶ 5} Griffin prepared three separate estimates, each specific to an individual phase of the repair. First, an estimate for the "contents packout" phase in the amount of $4,757.90. Second, an estimate for the "mitigation" phase in the amount of $2,672.49. Third, an estimate for the "rebuild" phase in the amount of $6,948.18, which was later adjusted to $7,198.18 due to an additional $250 in incidentals. Pekin approved the three estimates and paid insurance proceeds to the McIntyres for the "contents packout" and "mitigation" phase estimates. In turn, the McIntyres paid Griffin. Therefore, there is no dispute regarding the "contents packout" and "mitigation" phases of the repair process.

{¶ 6} In addition to the Emergency Service Authorization, Susan signed an Insurance Work Authorization/Contractor Agreement with Griffin. Pekin approved the "rebuild" phase estimate and issued a check to the McIntyres for $4,211.13. The McIntyres paid Griffin the $4,211.13. On January 28, 2015, Pekin issued a check to the McIntyres for $2,987.05, representing the remaining balance due to Griffin. The McIntyres made no further payments to Griffin.

{¶ 7} Susan testified at her deposition that she received documents containing drawings and dimensions; however, she did not recall seeing estimate figures. In her trial testimony, she did not recall seeing any estimates. Kevin Carpenter, a project manager for Griffin, testified that he prepared the "rebuild" phase estimate and provided it to Henson on August 4, 2017, a week before Susan signed the Insurance Work Authorization. Carpenter further testified that he received an e-mail from an employee of Pekin, which stated the employee had reviewed the estimate with Susan.

{¶ 8} Henson testified that Griffin performed all work contracted to be completed and that Griffin provided a Certification of Completion of Repairs. This certification indicated that "all necessary repairs * * * had been completed in a workmanlike manner and that no materials, labor or [the] like liens have been or will be incurred as a result of labor performed or materials used." The McIntyres signed this document. Likewise, Susan signed a Customer Satisfaction Survey, which indicated her "overall impression" of the work was "very good." The survey form further indicated Susan answered "yes" in response to questions regarding the following: whether (1) the estimator was prompt, (2) the estimator clearly explained the process of the work done, (3) Griffin employees were polite, courteous, and helpful, (4) production staff was neat, knowledgeable, and professional, (5) the work was done to her satisfaction, (6) she would recommend Griffin to her friends and family, and (7) Griffin may use her as a reference. Later at trial, Susan testified her impression of the work performed was "terrible." Susan acknowledged signing the survey, but disputed whether she checked "yes" to the seven answer boxes.

{¶ 9} The trial court found in favor of Griffin in the amount of $2,737.05 on its breach of contract claim. This amount represented the $2,987.05 previously withheld less the $250.00 for incidentals. With respect to the McIntyres' HSSA counterclaim, the trial court found the HSSA was inapplicable because there was "insufficient evidence to conclude Griffin solicited anything from the McIntyres." The trial court determined that the McIntyres requested Griffin's services, accepted them, and offered no complaints until months after the work was completed. The trial court stated that, pursuant to the HSSA, it would be "grossly inequitable" to permit the McIntyres to rescind the contract, while retaining the benefits therefrom. Even had Griffin violated the HSSA, the resulting damages would equal $0.00. In regard to the McIntyres' CSPA counterclaim, the trial court found that the work performed and services rendered constituted a "consumer transaction" and "that Griffin had engaged in deceptive acts." The trial court found Griffin violated the CSPA in the following ways:

(1) by failure to provide written notice to the McIntyres of their right to cancel the transaction, as required by R.C. 1345.23 [$200.00 in statutory damages];
(2) by failure to provide the written notice concerning estimates required by [Ohio Adm.Code] 109:4-3-05(A)(1) [$200.00 in statutory damages]; [and]
(3) representing that repairs had been made or services performed when they have not, pursuant to [Ohio Adm.Code] 109:4-3-05(D)(9). Specifically, by demanding for the full estimate amount, including fees for the replacement of blinds in the bedroom and closet ($76.82[*]2 = $153.64 actual damages), removal and replacement of bathroom floor underlayment ($163.37 actual damages), removal of vinyl floor covering * * * ($53.96 actual damages), and six months of storage when only [three] months was provided ($892.50[/]2 = $446.25 actual damages), Griffin is representing that said work was done, when the Court finds it was not.

{¶ 10} The trial court found these violations resulted in actual damages of $817.22. It trebled the damages and awarded $2,451.66, plus the $400.00 for statutory damages. Thus, the trial court awarded total damages of $2,851.66. The trial court offset the CSPA damages award with the damages award to Griffin on its breach of contract claim. Thus, the trial court entered judgment in favor of the McIntyres in the amount of $114.61.

{¶ 11} The McIntyres timely appealed the judgment of the trial court.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT ERRED IN CONCLUDING THAT THE HOME SALES SOLICITATION ACT DID NOT APPLY TO THE TRANSACTION BETWEEN GRIFFIN CONTRACTING AND THE MCINTYRES.

{¶ 14} The McIntyres contend the trial court erred in finding the HSSA inapplicable based on insufficient evidence that Griffin engaged in a "solicitation" of the sale. The McIntyres further argue the trial court erred in finding it would be "grossly inequitable" to require Griffin to return all payments, while allowing the McIntyres "to retain the benefit of the services, work and materials provided by Griffin."

{¶ 15} The essence of the McIntyres' first argument pertains to the trial court's weighing of the evidence and its judgment as to the credibility of the witnesses. Therefore, we construe this argument as asserting the trial court's decision finding the HSSA inapplicable was against the manifest weight of the evidence. See Sterling Constr., Inc. v. Alkire , 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, 2017 WL 3475420, ¶ 8. "The standard of review for a manifest weight challenge in a civil case is the same as that applied to a criminal case." Dunn v. Clark , 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, 2016 WL 698090, ¶ 8, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. Thus, in considering a manifest weight challenge, a reviewing court weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created a manifest miscarriage of justice warranting reversal and a new trial ordered. Hacker v. House , 12th Dist. Butler, 2015-Ohio-4741, 50 N.E.3d 259, ¶ 21, citing Eastley at ¶ 20. A judgment will not be reversed as being against the manifest weight of the evidence where the "judgment is supported by some competent, credible evidence going to all essential elements of the case." Ashburn v. Roth , 12th Dist. Butler Nos. CA2006-03-054 and CA2006-03-070, 2007-Ohio-2995, 2007 WL 1731426, ¶ 26, citing C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

{¶ 16} "In order for the HSSA to cover a transaction, it must be a home solicitation sale as defined by the Act." Paul Davis Restoration of Cleveland Metro West v. Karaman , 8th Dist. Cuyahoga No. 84824, 2005-Ohio-4017, 2005 WL 1846988, ¶ 14. R.C. 1345.21(A) defines a "home solicitation sale" as

* * * a sale of consumer goods or services in which the seller or a person acting for the seller engages in a personal solicitation of the sale at a residence of the buyer, including solicitations in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is there given to the seller or a person acting for the seller, or in which the buyer's agreement or offer to purchase is made at a place other than the seller's place of business.

{¶ 17} It is undisputed that Griffin is a "seller," the McIntyres are "buyers," and Griffin performed "consumer services," pursuant to the HSSA. Rather, the issue presented is whether Griffin "solicited" a sale of its services to the McIntyres. The McIntyres assert the trial court erred in finding Griffin did not engage in a solicitation of the sale because the original phone call included Susan's participation. Further, because of this call, Griffin responded to the McIntyre residence where a Griffin representative engaged in further discussion with Susan, which culminated in Susan signing the Emergency Service Authorization. Therefore, the McIntyres assert Griffin engaged in a personal solicitation of the sale.

{¶ 18} The trial court found the HSSA did not apply to the transaction between the McIntyres and Griffin. In so doing, it relied on a Second District opinion involving similar factual circumstances. See Luckoski v. Allstate Ins. Co. , 2d Dist. Montgomery, 2013-Ohio-5460, 5 N.E.3d 73.

{¶ 19} In Luckoski , homeowners suffered a loss due to a fire. Id. at ¶ 2. A claims adjuster from the homeowners' insurance company informed the homeowners it had a list of preferred contractors, but that the homeowners were free to use any contractor of their choosing. Id. at ¶ 18. The claims adjuster then contacted a contractor from the preferred contractor list. Id. at ¶ 2. The contractor responded to the residence, explained to the homeowners that he was a part of the insurer's program, but that the homeowners could arrange for a contractor of their choosing to make the repairs. Id. at ¶ 18. The homeowners signed an emergency work authorization and selected the contractor to perform the repairs. Id. The repair did not proceed to the homeowners' satisfaction and the homeowners filed a complaint, which included a claim brought pursuant to the HSSA. Id.

{¶ 20} The trial court found that the HSSA did not apply to the transaction because the contractor's "express purpose was not to make a sale but to secure the [homeowners'] residence following the fire." Id. at ¶ 42. The trial court found the contractor did not solicit the repair work, but rather, responded to being dispatched by a claims adjuster for the homeowners' insurance company. Id. Upon arriving at the residence, the contractor did not engage in solicitation. Id. Rather, the contractor provided information regarding the program, which permitted the homeowners to select any contractor for the repair. Id. at ¶ 42-43. The homeowners, aware of this information, elected to have the contractor complete the repair work. Id. at ¶ 43.

{¶ 21} Absent from the record is any indication Griffin engaged in a solicitation of the sale. Like Luckoski , a claims adjuster from Pekin informed the McIntyres they were free to select any contractor, but also provided them with preferred options. The claims adjuster contacted two of the preferred options on behalf of the McIntyres. As the contractor did in Luckoski , Griffin answered the phone call and responded to the residence to secure it following the fire and smoke damage. A representative from Griffin arrived and engaged in a discussion with Susan. The content of this conversation is not known. The McIntyres ultimately selected Griffin to perform the necessary repair work. Susan signed an Emergency Authorization and Griffin began the required work.

{¶ 22} The HSSA is designed to protect the consumer against high-pressure sales tactics occurring in the home. Altek Environmental Serv. Co. v. Harris , 5th Dist. Stark No. 2008 CA 00138, 2009-Ohio-2011, 2009 WL 1145233, ¶ 32. Based on the limited and inconsistent evidence presented to the trial court, this case simply does not fall within the scope of the HSSA. Rather, the McIntyres were presented with contractor options, informed of the damage their residence incurred, and hired Griffin. This evidence does not establish Griffin engaged in a personal solicitation.

{¶ 23} The only evidence presented pertaining to the discussion between Susan and Griffin is Susan's testimony she was upset on the day the damage occurred. While homeowners may unsurprisingly be distraught after experiencing significant damage to their residence, being distraught or upset alone does not mean that any conversation which occurred had to be a solicitation. The McIntyres further argue that anytime a homeowner enters such a contract, it is because of a "solicitation." We find this argument unpersuasive and note the trial court heard evidence that Susan relied upon the claims adjustor to do what was right for them. Susan testified that "she put the ball in [the claims adjustor's] court." Significantly, the trial court also discounted Susan's testimony after identifying multiple inconsistencies, and we defer to the trial court on credibility determinations. See State v. Glover , 12th Dist. Fayette No. CA2016-11-016, 2017-Ohio-7360, 2017 WL 3701246, ¶ 42.

{¶ 24} Noting the facts in Luckoski are markedly similar to the facts of this case, the trial court applied the holding of Luckoski and found there was insufficient evidence to conclude Griffin solicited anything from the McIntyres. For the foregoing reasons, we find the trial court's decision finding the HSSA inapplicable to this case is not against the manifest weight of the evidence.

{¶ 25} We next turn to the McIntyres' argument the trial court erred in finding that had a home solicitation sale occurred, it would be "grossly inequitable" to require Griffin to return all payments, while allowing the McIntyres "to retain the benefit of the services, work and materials provided by Griffin." The McIntyres contend Griffin failed to provide notice of their 3-day right to cancel the contract, in violation of the HSSA and CSPA. Based on this failure, the McIntyres argue they should have been permitted to rescind the contract and should have received as damages refund of all payments under the contract.

{¶ 26} Pursuant to the HSSA, each home solicitation sale must be evidenced by a written agreement. R.C. 1345.22 and 1345.23. Further, the writing must include a statement of the buyer's right to cancel under the contract until midnight of the third business day after the day on which the buyer signs the contract. Id. If the agreement fails to include a statement of the buyer's right to cancel, then the buyer's right to cancel does not expire. R.C. 1345.23(C). Upon the buyer exercising the right to cancel, the seller must refund all payments made under the contract to the buyer. R.C. 1345.23(D)(4)(a). Here, Griffin does not dispute that it did not provide the McIntyres with the required notice of their right to cancel.

{¶ 27} We note that the failure to comply with the HSSA constitutes a deceptive act or practice in connection with a consumer transaction in violation of the CSPA. R.C. 1345.02 and 1345.21 thru 1345.27. Thus, any violation of the HSSA is a violation of the CSPA. Paul Davis Restoration , 2005-Ohio-4017 at ¶ 14, citing R.C. 1345.28. Pursuant to R.C. 1345.09, when a violation of the CSPA occurs, a consumer may elect to rescind the contract or to sue for three times the amount of the actual damages. Thus, "[o]nce the consumer has chosen to rescind, or cancel, the contract, he is not entitled to recover damages under the [CSPA]." Clemens v. Duwel , 100 Ohio App.3d 423, 433, 654 N.E.2d 171 (2d Dist.1995). A consumer cannot rescind in one context and still claim a right to enforce in another. Id.

{¶ 28} Furthermore, "[t]he HSSA is intended to be a 'shield' for the consumer, not a 'sword.'" Kamposek v. Johnson , 11th Dist. Lake No. 2003-L-124, 2005-Ohio-344, 2005 WL 238152, ¶ 33. In such a situation, the trial court has discretion to make an equitable determination of damages. Id. Thus, we will not disturb the trial court's determination absent an abuse of discretion.

White v. Allstate Ins. Co. , 8th Dist. Cuyahoga No. 92648, 2009-Ohio-5829, 2009 WL 3649739, ¶ 17, discussing Kamposek at ¶ 33. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 29} The McIntyres sought rescission under the HSSA and alternatively damages and rescission under the CSPA. They did not make an election as to which remedy they were pursuing at trial. R.C. 1345.09(C)(1) provides that "in any action for rescission, revocation of the consumer transaction must occur within a reasonable time after the consumer discovers or should have discovered the ground for it * * *." The trial court ultimately awarded damages pursuant to the CSPA and exercised its discretion in finding rescission under the HSSA would be grossly inequitable. The trial court noted the McIntyres did not elect to rescind until after Griffin completed the work and had filed a complaint to seek the balance it felt owed for the work performed. Additionally, the trial court noted the McIntyres expressed satisfaction with the work via a Customer Satisfaction Survey and a Certification of Completion of Repairs. The trial court further noted "the McIntyres requested the service, accepted it, and offered no complaints for months after the work and services by Griffin were complete."

{¶ 30} After a thorough review of the record, we find the trial court did not abuse its discretion in finding that it would be grossly inequitable to permit the McIntyres to rescind the contract. The record contains ample evidence to support its findings that the McIntyres elected to have Griffin perform the work and services and offered no complaints for months after the work and services were complete. In fact, Susan indicated on the Customer Satisfaction Survey that her overall impression of Griffin's work was "very good." Further, the Certification of Completion of Repairs, signed by the McIntyres, indicated that all necessary repairs were completed in workmanlike manner. As the trial court found, it would be inconsistent with the purpose of the protections provided by the HSSA to permit the McIntyres to rescind the contract months after completion yet receive the full contract price and enjoy the benefits of the completed contract. See Kamposek at ¶ 33 (cautioning against unjust scenarios where a buyer attempts to take advantage of a seller that failed to provide notice of the right to cancel). Based on this evidence, we find the trial court did not abuse its discretion in finding that had the HSSA applied, rescission would have been grossly inequitable and damages would equal $0.00.

{¶ 31} Accordingly, the McIntyres' first assignment of error is overruled.

{¶ 32} Assignment of Error No. 2:

{¶ 33} THE TRIAL COURT ERRED IN ITS AWARD AND CALCULATION OF DAMAGES UNDER THE CONSUMER SALES PRACTICES ACT.

{¶ 34} The McIntyres assert the trial court erred in its award and calculation of damages pursuant to the CSPA in three respects. First, the McIntyres argue the trial court erred in finding they failed to meet their burden of proof with respect to certain CSPA violations. Second, the trial court erred in offsetting its award of damages for CSPA violations with the damages it awarded Griffin on its breach of contract claim. Third, the trial court erred in its decision to not award attorney fees to the McIntyres.

{¶ 35} The arguments posed by the McIntyres require this court to apply two different standards of review. The McIntyres' first argument asks this court to weigh the evidence differently than the trial court; therefore, we will conduct a manifest weight of the evidence review. Dunn , 2016-Ohio-641 at ¶ 8, citing Eastley , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 17. The next two arguments regard the trial court's award of damages, which we review for an abuse of discretion. Roberts v. United States Fid. & Guar. Co. , 75 Ohio St.3d 630, 634, 665 N.E.2d 664 (1996) ("[w]e will not disturb a decision of the trial court as to a determination of damages absent an abuse of discretion"); Bittner v. Tri-County Toyota, Inc. , 58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991) (stating a trial court's determination whether to award attorney fees based on a CSPA violation is discretionary, and therefore, is reviewed for an abuse of discretion).

{¶ 36} The McIntyres contend the trial court erred by finding they failed to prove certain deceptive acts in violation of the CSPA. Specifically, the McIntyres assert Griffin committed the following deceptive acts constituting CSPA violations:

• Griffin failed to provide the McIntyres with a written estimate at the time of the initial face to face contact and/or prior to any restoration work being done.

The contract did not contain a statement advising the McIntyre[s] they were entitled to a written, oral, or no estimate.

• The contract did not contain a reasonable completion date;
• The contract did not contain a statement of the services to be rendered or an itemization of the repairs to be made;
• Griffin failed to inform the McIntyres they intended to employ sub-contractors;
• Griffin failed to provide the McIntyres with an itemized list of repairs to be performed or services rendered, the amount charged for labor and the identity of the individual performing the service.

The McIntyres also contend the trial court erred by not finding an additional deceptive act pursuant to Ohio Adm.Code 109:4-3-05(D)(9) because Griffin overcharged them to remove a mirror and to replace drywall in the bathroom. The McIntyres assert it is undisputed these deceptive acts occurred; therefore, the trial court's judgment finding the McIntyres failed to meet their burden of proof with regard to these asserted acts is against the manifest weight of the evidence. Whereas, Griffin asserts these alleged violations were highly disputed at trial and the trial court did not err in finding against said violations.

{¶ 37} Ohio Adm.Code 109:4-3-05(A)(1) provides, in pertinent part, that it

shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service where the anticipated cost exceeds twenty-five dollars and there has been face to face contact between the consumer or the consumer's representative and the supplier or the supplier's representative, prior to the commencement of the repair or service for a supplier to:
(1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, to provide the consumer with a form which indicates the date, the identity of the supplier, the consumer's name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service. The form shall also clearly and conspicuously contain the following disclosures in substantially the following language:
"Estimate * * *
________ written estimate
________ oral estimate
________ no estimate"

{¶ 38} After thoroughly reviewing the record, it is clear the trial court awarded statutory damages after finding Griffin "fail[ed] to provide the written notice concerning estimates required by [Ohio Adm. Code] 109:4-3-05(A)(1)." Thus, the record demonstrates the trial court found this deceptive act occurred and awarded statutory damages accordingly. Therefore, the McIntyres' argument otherwise is clearly incorrect.

{¶ 39} The McIntyres next argue it is undisputed the remaining asserted deceptive acts occurred. However, the record and the briefs herein clearly demonstrate the asserted deceptive acts are disputed. The record contains conflicting testimony with respect to whether Griffin furnished written estimates for the three phases for which work was performed. The project manager testified regarding the program Griffin employs to create estimates and that he personally created the estimate for the third phase of the repair. He also testified regarding the three written estimates in the record, which depict drawings and dimensions and contain individualized repair line items and their corresponding cost. Additionally, the Emergency Service Authorization and Insurance Work Authorization both reference these estimates and were signed by Susan. However, Susan testified at trial she never received the three estimates. In her deposition, Susan testified she had seen documents depicting drawings and dimensions but could not recall the specifics of the documents.

{¶ 40} While the record contains conflicting testimony regarding whether Griffin created, and provided to the McIntyres, written estimates containing the pertinent information at issue on appeal, we find the trial court's findings are not against the manifest weight of the evidence. Competent, credible evidence exists in the record that the estimates were created and contained the information at issue. Testimonial evidence conflicts as to whether Susan received the estimates as well as regarding the extent of the bathroom repair. However, as discussed above, the trial court discounted Susan's testimony because it was not convinced that Susan's recollection of events occurring nearly three years ago was completely accurate. Glover , 2017-Ohio-7360 at ¶ 42 (stating we defer to the trial court's determinations with respect to witness credibility). The trial court was in the best position to judge the witnesses and weigh their credibility. Therefore, we find the trial court did not clearly lose its way and create a manifest miscarriage of justice in finding the McIntyres "failed to prove other alleged deceptive acts."

{¶ 41} Next, we turn to the McIntyres' arguments with respect to damages. The McIntyres assert the trial court erred in its calculation of damages because (1) it offset the breach of contract and CSPA violation damages, (2) it miscalculated the actual damages of replacement blinds, and (3) erred in its decision to not award attorney fees.

{¶ 42} The McIntyres assert "if the CSPA is to have any deterrent effect, the items which Griffin charged and did not perform should have been deducted from any award made to Griffin." However, the McIntyres fail to cite any authority demonstrating the trial court acted unreasonably, arbitrarily or unconscionably, by offsetting damages. Rather, the trial court, by offsetting damages, did in fact award Griffin the actual damages for its breach of contract claim with deductions for the trebled damages brought about by Griffin's deceptive acts. Therefore, the trial court did not abuse its discretion in this regard.

{¶ 43} With respect to the replacement blinds, the record reflects Griffin removed the damaged blinds, but failed to replace the blinds. The cost charged for the replacement blinds equaled $76.82. The trial court found Griffin violated Ohio Adm.Code 109:4-3-05(D)(9) by representing it performed repairs or services which it did not perform. Specifically, the trial court found Griffin committed a violation for demanding full payment of fees for the replacement of blinds in the bedroom and closet. The McIntyres' contention that the actual damages are $84.60 fails to acknowledge the inclusion of $7.78 in the blinds line item for removal, which Griffin performed. Thus, the trial court awarded the actual damages for replacement blinds of $76.82. Because the award of actual damages equaled the amount charged for the work that was not completed, the trial court did not abuse its discretion in its award.

{¶ 44} Finally, pursuant to R.C. 1345.09(F), a trial court may award attorney fees if the consumer "complaining of the act or practice that violated [the CSPA] has brought or maintained an action that is groundless, and the consumer filed or maintained the action in bad faith," or if the "supplier * * * knowingly committed an act or practice that violate[d the CSPA]." At issue is the trial court's finding with respect to the latter. Specifically, the trial court found that "an award of attorney fees to the McIntyres would be inequitable given the absence of any intent by Griffin to intentionally deceive the McIntyres, and given that the McIntyres only complained about Griffin's performance after Griffin demanded the balance of the proceeds."

{¶ 45} We find the trial court's decision to not award attorney fees was not unreasonable, arbitrary, or unconscionable. As the trial court found, the record does not contain any evidence demonstrating Griffin knowingly committed an act or practice that violated the CSPA. Therefore, the trial court's decision does not constitute an abuse of discretion.

{¶ 46} Accordingly, the McIntyres' second of assignment of error is overruled and the judgment of the trial court is affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.