Hunter v. Shield

550 F.Supp.3d 500

Ruth A. HUNTER, et al., Plaintiffs,

v.Rhino SHIELD, et al., Defendants.

Case No. 2:18-cv-1097

United States District Court, S.D. Ohio, Eastern Division.

Signed July 19, 2021

Filed July 20, 2021

James Patrick Connors, Law Offices of James P. Connors, Columbus, OH, for Plaintiffs.

Zachary Swisher, David L. Lackey, Sybert, Rhoad, Lackey & Swisher, LLC, Powell, OH, for Defendants Rhino Shield 7745 E. 89th St. Indianapolis, IN 46256, Rhino Shield 408 Kelly Plantation Dr. Unit 212 Destin, FL 32541-8474, James H. Williams, Steven C. Dominique, Tri-State Coating Inc., AmCoat Industries Inc., Rudolph J. Pallone, AmCoat Technologies Incorporated, Rhino Shield Florida.

Aleksandre Dgebuadze, Columbus, OH, Pro Se.

OPINION AND ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants Rhino Shield, James Williams, Steven Dominique, Tri-State Coating, Inc., AmCoat Industries, Inc., Rudolph Pallone, John Robertson, and AmCoat Technologies, Inc.’s (collectively, "Defendants") Motion for Summary Judgment (Defs.’ Mot. Summ. J., ECF No. 189); Plaintiffs Ruth Hunter and Mark Hunter's Four Partial Motions for Summary Judgment (Pls.’ First, Second, Third, and Fourth Mots. Summ. J., ECF Nos. 190–193); Plaintiffs’ two Motions to Strike. (ECF Nos. 216, 233), and Plaintiffs’ Motion for Default Judgment against Defendant Alex Dgebuadze (ECF No. 196). For the following reasons, the Court GRANTS Defendants’ Motion for Summary Judgment, GRANTS IN PART and DENIES IN PART Plaintiffs’ Third Motion for Summary Judgment, DENIES Plaintiffs’ First, Second, and Fourth Motions for Summary Judgment, DENIES Plaintiffs’ Motions to Strike, and DENIES Plaintiffs’ Motion for Default Judgment.

I. Background

This case arises from a contract between David Hunter and Defendant Tri-State Coating, Inc. to apply "Rhino Shield" ceramic coating to the exterior of the home of Mr. Hunter and his wife, Plaintiff Ruth Hunter. (David Hunter Dep., Ex. C, ECF No. 159-3.) David Hunter is now deceased. His son, Plaintiff Mark Hunter, brings this action as the executor of his estate together with Ruth Hunter.

A. Rhino Shield ceramic coating, AmCoat Industries, Inc., and Tri-State Coating, Inc.

Rhino Shield is a ceramic coating designed for application to the exterior walls of a house. (David Hunter Dep., Ex. B, ECF No. 159-2.) Advertisements for Rhino Shield indicate the purported benefits of the product:

• "Eliminate frequent repainting"

• "Reduce energy consumption"

• "Prevent mold, mildew, staining"

• "25-year warranty"

• "No cracking, flaking or peeling"

• "Increase resale value"

(Id. ) The Rhino Shield coating can be applied to wood, stucco, brick, and block. (Williams Aff. ¶ 2., ECF No. 217-1.) Rhino Shield has dealers located throughout the United States. (David Hunter Dep., Ex. B.) The product includes an "Adhesive Primer Sealer" and a "Ceramic Finish Coat." (Id. , Ex. C.)

Rhino Shield is a trademarked product name owned by Defendant AmCoat Industries, Inc., a Florida corporation. (Dominique Dep. 16:16–22.) Defendant Steven Dominique is the majority owner and CEO of AmCoat Industries. (Id. at 29:8–24.) AmCoat Industries has an agreement with Defendant Tri-State Coating, Inc., an Indiana corporation, under which AmCoat Industries supplies Rhino Shield to Tri-State and gives Tri-State the exclusive rights to deal Rhino Shield in Indiana and central and southern Ohio. (Defs. Exs. 18–19, ECF Nos. 226-3–4.)

Tri-State registered with the Ohio Secretary of State on August 26, 2011 to do business in Ohio under the name "Rhino Shield." (Williams Aff. ¶ 3; Certificate of Good Standing, Defs’ Ex. 16, ECF No. 217-3.) Defendant Jim Williams is the owner and president of Tri-State. (Williams Dep. 54:4–9, 57:21–23.) Defendant Rudolph Pallone is a salesperson working for Tri-State as an independent contractor. (Pallone Dep. 38:10–19.)

B. Transaction between David Hunter and Tri-State

In the fall of 2012, David Hunter saw a television advertisement for Rhino Shield. (David Hunter Dep. 17:17–19.) Hunter was in failing health at the time. The Rhino Shield 25-year product warranty was attractive to him because he wanted the house to look good so that his wife, Ruth, would be able to sell the home if anything happened to him. (Id. at 15:13–20.) After seeing the television ads for Rhino Shield a few times, Hunter called the 1-800 number listed in the ad. (Id. at 18:9–12.) Pallone answered the phone and identified himself as "Rhino Shield." (Id. at 19:3–7.) After David Hunter and Pallone spoke on the phone, Pallone came to the Hunters’ home on November 14, 2012. (Id. at 19:10–12.) Pallone inspected the home, showed David Hunter a sample of concrete siding with the Rhino Shield coating on it, and explained how long it would take to complete the application of Rhino Shield to the home. (Id. at 21:1–16.) Pallone also left David Hunter with a quote that day. (Id. ) The quote stated that the price would be good for 30 days. (Pallone Dep. 74:1–13.)

On December 31, 2012, David Hunter called Pallone again about Rhino Shield. (David Hunter Dep. 23:12–17.) According to Hunter, Pallone told him that the price from the quote would not go up if he "got in by December 31st." (Id. ) Within the hour, Pallone came to the Hunters’ home and brought with him a preprinted agreement to be filled out. (Id. at 25:5–10.) After going over the price, Hunter decided to go through with the transaction and signed the agreement, but Hunter did not read any part of the contract other than the price. (Id. at 28:5–8, Ex C.) The "agreed upon" price in the agreement was $11,998. (Id. ) Hunter made a down payment of $1,200 on December 31, 2012. (Id. at 32:5–13.)

The agreement between David Hunter and Tri-State is single piece of paper, filled front and back, with "Rhino Shield by Tri-State Coating, Inc." at the top. (Id. , Ex. C.) The front page of the agreement contains the customer information box, the listed services, and the agreed-upon payment structure. (Id. ) The back page of the agreement contains the terms and conditions. (Id. ) A cancellation notice at the top reads: "The Customer understands that they have 3 business days to cancel this contract without obligation. After 3 days the down-payment is non-refundable. " (Id. (bold in original).) The agreement contains a two-year workmanship warranty and indicates that Tri-State will transfer to the customer all of the manufacturer's written warranties. (Id. ) It contains a warranty disclaimer, an integration clause, and a modification clause. (Id. ) The agreement consistently refers to "Tri-State Coating" throughout. (Id. )

In early May 2013, Tri-State sent a crew of three people out to begin applying Rhino Shield on the Hunters’ home. (Pallone Dep. 110:6–17.) The crew sent was run by Defendant Alex Dgebuadze and included Defendant John Robertson. (Id. ; Williams Dep. 150:4–13.) Dgebuadze and Robertson are subcontractors and are "certified" appliers of Rhino Shield, according to Williams. (Williams Dep. 149:23–25, 191:23–192:9.) On May 10, 2013, after Dgebuadze and his crew applied Rhino Shield to the Hunters’ home, Pallone met with David Hunter at the home to collect additional payment. (David Hunter Dep. 35:4–9.) Hunter signed a "completion certificate" and wrote a check to "Rhino Shield" for $9,719, but told Pallone that he was withholding 10% because he was not happy with the job. (Id. at 35:24–36:5, Exs. D–E, ECF Nos. 159-5–5.) The "completion certificate" notes in handwriting, "customer holding back 10%." (Id. , Ex E.) The certificate also notes underneath the signature lines:

Tri-State Coating, Inc.

Authorized Rhino Shield dealer

(Id. (text in original).)

After Hunter signed the completion certificate and withheld 10% on May 10, 2013, Williams claims he called David Hunter three times to talk about Hunter's problem with the job, but Hunter never answered and never returned the call. (Williams 165:2–166:3.) David Hunter disputes this, claiming that Williams "never called, period." (David Hunter Dep. 39:18–24.) Soon after May 10, Pallone went to the Hunters’ home and prepared a "punch list" of problems to fix together with the Hunters. (Pallone Dep. 132:7–135:25.) Pallone sent Dgebuadze back out to the Hunters’ home to work on the punch list. (Id. )

After Dgebuadze worked on the punch list, Mark Hunter (David and Ruth's son) arranged a meeting with Pallone for June 7, 2013 because the "job was not going well" and there was "paint all over the place, on everything, the roof, the concrete, the concrete bricks, windows, everything." (David Hunter Dep. 40:20–42:10.) During the June 7 meeting, Mark Hunter presented Pallone with a "deficiency report" containing pictures of everything the Hunters wanted fixed. (Mark Hunter Aff. ¶ 31, ECF No. 190-3; "Deficiency Report," ECF No. 71-7.) The deficiency report showed photos of overspray on the brick wall, roof, yard hose, brick patio, utility meter; cracking paint, damaged plants; areas where primer supposedly was not applied prior to finished coating being applied; pine needles imbedded in the paint; the report also requested funding from Tri-State to test the thickness of the coating. ("Deficiency Report," ECF No. 71-7.")

After the June 7 meeting, the Hunters met with Williams for the first time on June 19, 2013. (David Hunter Dep. at 45:1–46:21.) The Hunters told Williams about damage to a patio umbrella and damage to the roof from overspray; Williams wrote a check to the Hunters to cover the cost of replacement, but the Hunters never cashed the checks. (Id. ) Williams expressed to the Hunters that the quality of the job was not acceptable and that he was not satisfied. (Mark Hunter Aff. ¶¶ 44–45.) Williams sent Dgebuadze back out to fix problems with the job. (Id. ) David Hunter testified that not all the requested repairs were made and that sometimes "they would actually make things worse[.]" (David Hunter Dep. 50:23–24.) And Mark Hunter testified that subcontractors who came to...