Ostigny v. Brubaker

235 N.E.3d 600

2024-Ohio-384

Amy Beth OSTIGNY, et al., Appellants,

v.Robert BRUBAKER, et al., Appellees.

CASE NO. CA2023-03-026

Court of Appeals of Ohio, Twelfth District, Warren County.

February 5, 2024

CIVIL APPEAL FROM MASON MUNICIPAL COURT, Case No. 21CVI00002.

Amy Beth Ostigny and David Ostigny, pro se.

Robert Brubaker, Columbus, and Sherry Brubaker, pro se.

OPINION

BYRNE, J.

{¶ 1} Amy Beth and David Ostigny ("the Ostignys") appeal from the decision of the Mason Municipal Court that denied their claim for breach of contract and granted the counterclaim for breach of contract brought by Sherry and Robert Brubaker ("the Brubakers"). For the reasons discussed below, we affirm the trial court’s decision.

I. Factual and Procedural Background

{¶ 2} The Ostignys operate a home renovation business. The Brubakers entered into two contractual agreements with Amy Beth Ostigny to renovate portions of the Brubakers’ home in Warren County, Ohio. A dispute arose after the Brubakers became dissatisfied with the home renovation work and then refused to pay the Ostignys, who then walked off the job.

{¶ 3} Afterwards, the Ostignys asserted a claim in the Mason Municipal Court, seeking $5,500 in damages for the Brubakers’ alleged breach of contract.¹ The Brubakers answered and counterclaimed, asserting a claim of breach of contract and a claim for violations of the Ohio Consumer Sales Practices Act ("OCSPA").

{¶ 4} The parties appeared for a two- day trial before a magistrate, which trial occurred in May and June 2021. The parties appeared pro se.

{¶ 5} On the first day of trial, David Ostigny testified and introduced exhibits. Next, the Brubakers testified and introduced exhibits. David Ostigny then briefly cross-examined Robert Brubaker before the court continued the hearing in progress to the second trial day.²

{¶ 6} On the second day of trial, David Ostigny resumed his cross-examination of Robert Brubaker, which cross-examination lasted for the majority of the day. At the conclusion of this cross-examination, the Brubakers offered a few additional exhibits for the court’s consideration.

{¶ 7} The court then asked David Ostigny if he or Amy Beth Ostigny wished to take the stand and offer any rebuttal evidence. David Ostigny indicated he had many things he wanted to say but requested a continuance because he was not prepared to proceed and was "exhausted."

{¶ 8} Based on David Ostigny indicating that he had rebuttal evidence but was not prepared to proceed, the court suggested that in lieu of testimony, the parties could submit post-trial affidavits outlining any factual differences they claimed. The court explained that David Ostigny could "type up a series of statements that you think are factually different from what they said." David Ostigny indicated he did not "write very well" and would prefer a continuance, but if the court would not grant a continuance, he would rather just proceed to closing arguments and verbally discuss his disagreements. The court then heard the parties’ closing arguments.

{¶ 9} The magistrate later issued a written decision. The fundamental facts of the underlying dispute are ultimately not at issue in this appeal, but we will briefly discuss the magistrate’s factual findings and legal conclusions to provide context.

{¶ 10} The magistrate found that in August 2020, Amy Beth Ostigny and the Brubakers signed two contracts for renovation work to the Brubakers’ home.³ The first contract was for a kitchen remodel and the second contract was to remove and replace carpet. The total labor and material costs for the kitchen remodel was $15,000, to be paid to Amy Beth Ostigny in three installments (consisting of a $7,500 down payment, $3,750 due at the halfway point of the project, and $3,750 due upon completion). The total labor and material costs for the carpet project was $1,900, to be paid in two installments.

{¶ 11} Work commenced but much of the work was not performed to the Brubakers’ satisfaction. On the other hand, the Ostignys found the Brubakers difficult to work with and also believed that they were demanding more work than the parties had agreed would be performed.

{¶ 12} In September 2020, the parties met in an effort to settle their differences concerning the scope of work and to achieve final completion of the contract. At that time, the Brubakers had made the first two payments on the kitchen remodel contract, but were unwilling to pay the remaining balance of $3,750 with so much work remaining to be completed or not completed to their satisfaction. The Brubakers also had only paid for approximately half of the carpet job, which was only partially completed.

{¶ 13} The parties reached no agreement at the meeting. The Ostignys performed no further work on the home and subsequently placed a mechanic’s lien on the Brubakers’ home.

{¶ 14} With respect to the Ostignys’ claim for breach of contract, the magistrate noted that they were requesting the final payment on the kitchen remodel contract of $3,750. However, the court found that the Brubakers were justified in withholding this final payment based on the Ostignys not completing contracted work. Accordingly, the court found that the Ostignys had not met their burden to prove a breach of contract by the Brubakers.

{¶ 15} With regard to the Brubakers’ counterclaim for breach of contract, the magistrate found that Ostignys had breached their agreement with the Brubakers by failing to complete the kitchen remodel project and the carpet project. The magistrate further found that the Brubakers had incurred damages as a result of the breach—specifically, certain costs to complete the project or to repair items damaged by the Ostignys’ subcon- tractors. The magistrate awarded the Brubaker’s $5,672.93 in contractual damages. The magistrate also noted that the Brubakers had submitted no evidence in support of their claim for a violation of the OCSPA and stated that "any relief for the Brubakers must come under" the breach of contract claim. The magistrate’s decision impliedly dismissed the OCSPA claim.

{¶ 16} The Ostignys objected to the magistrate’s decision. The trial court overruled their objections and adopted the magistrate’s decision. The Ostignys appealed and raised five assignments of error, which we will review in turn.

II. Law and Analysis

A. The Parties’ Status as Pro Se Litigants

[1–3] {¶ 17} The parties are representing themselves in this appeal. We pause briefly to note that "pro se litigants are expected, as attorneys are, to abide by the relevant rules of procedure and substantive laws, regardless of their familiarity with the law." Fontain v. H&R Cincy Properties, L.L.C., 12th Dist. Warren, 2022-Ohio-1000, 187 N.E.3d 1, ¶ 26. "As a result, pro se litigants are presumed to have knowledge of the law and correct legal procedures so that they remain subject to the same rules and procedures to which represented litigants are bound." Havens v. Havens, 12th Dist. Fayette No. CA2022-01-002, 2022-Ohio-3103, 2022 WL 4075423, ¶ 18. "In other words, ‘[p]ro se litigants are not to be accorded greater rights and must accept the results of their own mistakes and errors, including those related to correct legal procedure.’ " Perelman v. Meade, 12th Dist. Warren No. CA2021-06-054, 2021-Ohio-4247, 2021 WL 5764280, ¶ 22, quoting Cox v. Zimmerman, 12th Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, 2012 WL 195005, ¶ 21.

B. Denial of Request for Continuance

{¶ 18} The Ostignys’ first assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONTINUING THE CASE IN PROGRESS SO OSTIGNY WOULD HAVE A CHANCE TO CROSS EXAMINE MR. AND MS[.] BRUBAKER AND REBUT THEIR TESTIMONY AND HUNDREDS OF PAGES OF EXHIBITS[.]

[4] {¶ 19} The Ostignys argue that the trial court abused its discretion by "cutting the trial short before [David Ostigny’s] opportunity to cross examine and rebut Brubaker’s testimony." The Ostignys do not offer more than this statement in articulating their argument in the argument portion of their brief. However, in the statement of facts, the Ostignys stated that the court "cut the trial short" without giving David Ostigny time to "finish cross examining [Robert Brubaker] or even start to cross-examine [sic] [Sherry Brubaker]. * * * [David Ostigny] needed to fully cross examine the Brubakers and to rebut their testimony. [David Ostigny] asked for the court to continue the trial in progress but the court overruled it."

[5–7] {¶ 20} The decision to grant or deny a continuance is entrusted to the sound discretion of the trial court. Lykins v. Hale, 12th Dist. Clermont, 2023-Ohio-752, 210 N.E.3d 739, ¶ 37. Accordingly, we review the trial court’s decision for an abuse of discretion. Id. An abuse of discretion implies the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 21} We have reviewed the entire record and specifically the portion of the trial where, as the Ostignys characterize it, the magistrate "cut the trial short." The record reveals that the trial did not pro- ceed as the Ostignys describe. In fact, David Ostigny spent the majority of the second day of trial cross-examining Robert Brubaker. He then ended his cross-examination, stating, "That’s all I have." The magistrate asked if there was any more evidence that either side wanted to present. David Ostigny did not respond, but Sherry Brubaker responded that she did have more evidence and offered an additional exhibit and discussed the exhibit briefly.

{¶ 22} The magistrate then turned to the Ostignys, and -- noting that it was getting later in the day -- asked them if either wanted to provide any testimony in rebuttal, "factual things that you want to rebut that you’ve heard that you disagree with?" David Ostigny replied, "There’s too many. I would ask for a continuance again." The magistrate suggested that if there were "too many" issues, David Ostigny should pick two "big ones"...