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Date: 01-03-2019

Case Style:

RUBY KUMAR - vs - USA INSULATION

Case Number: 2018-L-058

Judge: TIMOTHY P. CANNON

Court: COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

Plaintiff's Attorney: Brian Christopher Mulhall

Defendant's Attorney: Gregory P. Amend
Amanda M. Gatti

Description:





This matter emanates from a February 28, 2017 contract between the
parties, whereby USA Insulation agreed to insulate the exterior walls of Ms. Kumar’s
residence in Lakewood, Ohio, with USA Premium Foam Insulation. The signed contract
provides that Ms. Kumar agreed to pay $6,213.96.11, less a senior citizen discount in the
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amount of $288.85. Ms. Kumar financed the project with a zero-interest loan through
Wells Fargo. USA Insulation performed under the contract on or about March 13, 2017,
but Ms. Kumar was not satisfied with that performance. Ms. Kumar filed a dispute with
Wells Fargo. In response, USA Insulation sent a letter to Wells Fargo indicating it had
sent a service representative to Ms. Kumar’s house to investigate her concerns on March
20, 2017. The letter stated USA Insulation’s service representative found some areas
that needed follow-up attention, but Ms. Kumar refused to schedule an appointment with
USA Insulation to address the concerns.
{¶3} Thereafter, Ms. Kumar paid a plumber and two other insulation companies
to conduct diagnostic infrared testing and investigate her concerns with the work done by
USA Insulation.
{¶4} On March 6, 2018, Ms. Kumar filed a small claims complaint against USA
Insulation, alleging “incompletion of insulation of my home and fraudulent work.” She
requested judgment in the sum of $6,000.00, plus interest from the date of the complaint
at the rate of 4% and court costs.
{¶5} The municipal court held a small claims trial on April 9, 2018. Ms. Kumar
appeared pro se, as did the General Manager of USA Insulation, Jack Jones. Dustin
Smith, Insulation Manager for USA Insulation, also testified.
{¶6} Ms. Kumar stated that when USA Insulation completed its work, she still
had cold air coming through the walls of her home. She hired a plumber with an infrared
gun to “see through the walls,” and he informed her that the company had “missed some
spots.” Ms. Kumar then called two other insulation companies who took pictures, and
they also told her there were areas not filled in with foam. She stated it appears there is
less insulation in the walls now then there was when USA Insulation finished their work,
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as though “it dissolves itself.” Ms. Kumar stated she paid a total of $550.00 for these
diagnostic appointments. Ms. Kumar also stated an employee from USA Insulation came
out on March 20, 2018 (after the complaint had been filed) to perform an infrared
inspection and gave her information about what needed to be completed.
{¶7} The court asked Ms. Kumar how much she had paid to USA Insulation and
how much she still owed. Ms. Kumar first stated she had paid $6,000.00. The court then
asked for a copy of the receipt. Ms. Kumar stated Wells Fargo has the receipt. The court,
in an attempt to obtain proof from Ms. Kumar to support her claim for a monetary
judgment, asked how much she had paid and how much she still owed. Ms. Kumar
explained that she financed the contract price through Wells Fargo without interest. Ms.
Kumar estimated she had made payments to Wells Fargo in an approximate amount of
$4,000.00 or $4,500.00. However, she later stated, “So far – I think about a couple
thousand dollars so far. I mean, my payments [sic] is like $98 a month but I pay them
more, as a rule. Usually I pay them about 150.”
{¶8} In response to the court’s inquiry as to her request for a judgment in the
amount of $6,000.00, Ms. Kumar explained she is asking for “all of my money back”; she
stated the court should give Wells Fargo the money, who in turn could return the money
to Ms. Kumar.
THE COURT: That’s not what this says. The judgment – you’re asking for a judgment against them for you.

MS. KUMAR: Yeah. And this is where the money’s going to go. It’s going to go back to Wells Fargo. That’s – I won’t owe them anything if – why should I pay them? Why should I keep on paying for something that I didn’t get?

THE COURT: I’m trying to understand what you’ve paid out of pocket. And what you owe. * * * So the problem is, is that I can’t –
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I need specifics from you. Not – I need to know what exactly have you paid, and you don’t have that?

MS. KUMAR: No, I don’t.

{¶9} Ms. Kumar presented exhibits, including the signed contract with USA
Insulation; the installation warranty; pictures and statements from the other companies
she called to evaluate the insulation; a check paid to Berry Insulation for “diagnostic
insulation” in the amount of $300.00; a printout indicating a $50.00 debit charge to
Northeast Plumbing; and a receipt from Affordable Foam for $150.00 to “consult and
provide infrared photos of dwelling.” Ms. Kumar did not, however, provide any statements
from Wells Fargo or any information regarding the amount of her note or the amount Wells
Fargo paid to USA Insulation under the terms of the note in support of her claim for
$6,000.00.
{¶10} Jack Jones, General Manager of USA Insulation, stated the insulation was
installed at Ms. Kumar’s residence in March 2017. Ms. Kumar filed a dispute with Wells
Fargo in April 2017. USA Insulation had attempted to revisit the residence to determine
if it needed service. Mr. Jones explained that “sometimes after we do the work there is
potential shrinkage or we miss a cavity here or there, without a doubt. This is not the first
time something like this has happened. * * * Typically what we do is we go in after it’s
had a chance to settle and we fill in all the pockets.” He stated that approximately five
percent of the time, USA Insulation has to go back and do a thermal image check at no
additional charge to the customer.
{¶11} Mr. Jones then presented a letter the company’s administrative assistant
had sent to Wells Fargo, dated May 4, 2017, in response to Ms. Kumar’s dispute, which
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explained that Ms. Kumar on several occasions would not allow USA Insulation to check
the residence to see if it needed service. Specifically, the letter provides:
In regards to Ms. Kumar’s dispute, we sent our representative Rusty Pitrone out to Ms. Kumar’s house on 3/20/17 to investigate her concerns. During this visit, Rusty found there were a couple spots that may need attention. I spoke to Ms. Kumar to try and schedule an appointment for the crew to come out and address her concerns. She refused to schedule an appointment, and wanted to know exactly what we were going to do while there. I offered to have our Operations Manager talk to her and again she refused to allow us to come out, while speaking with him. We do not have a signed service ticket because she refused to allow us to come out and address her concerns.

{¶12} Mr. Jones stated Ms. Kumar finally allowed an employee inside the home
in March 2018 (after the complaint was filed), who attempted to write up a service ticket.
As Mr. Jones explained:
He got there and was attempting to do it. Miss Kumar has a tendency to get aggressive and abusive verbally, both on the phone with most of us and at the house. So he didn’t complete as much as he would like to, but he was able to – this is not – you know, he crossed off ‘work completed’ because work wasn’t completed. This is just a service ticket. And these are – if you look at the notes, it pretty much refers to that.

Mr. Jones provided a copy of the service ticket, dated March 20, 2018, which was signed
by Ms. Kumar. The customer concerns are described as “check downspouts (connected,
not connected) repair if needed; thermal image upstairs areas of concern; foam any areas
that need attention.” The work to be completed is described as “4 downspout caps where
they attach to ground crock covers 4”; several 2nd floor windows & doors need foamed,
no bathroom, tile on walls; fill 2x soffit boxes with blown fiberglass; all 2nd story windows
& doors & 5 on first floor.” Mr. Jones further stated, “we’re happy to go out there and do
whatever service is needed, if it’s needed, based on the notes that are here. And, you
know, we ask is that [sic] whomever we send there, our service manager or installation
6
manager, can go ahead and conduct the business without any, you know aggressiveness
or any retaliation.”
{¶13} The court then asked how Wells Fargo plays into the situation. Mr. Jones
stated the total cost of the contract was $6,213.96 and that USA Insulation had been paid
in full by Wells Fargo, who provided Ms. Kumar with an interest-free loan.
{¶14} Dustin Smith, the Insulation Manager for USA Insulation, testified that “the
scope of work that we would have had to do to complete for her would have taken another
three or four hours,” which is why it could not be completed when they went to the
residence at 3:00 p.m. on March 20, 2018. He described the issues they found as
“minimal. Normal stuff that would happen in a house that size.” Mr. Smith explained the
amount of work that remained was somewhere between five to ten percent of the project,
but that they have been met by Ms. Kumar with resistance when attempting to return to
the residence.
{¶15} Also included in the record, but not referenced in any testimony, is an
undated document titled, “Change Order/Incident Report Form and Release/Waiver
Agreement.” It is signed by a USA Insulation representative and provides, in part: “We
agree to pay the cost incurred of $578.00 and to return in the late fall of 2017 to thermal
image the home and fill any voids that are found and agreed upon.”
{¶16} The court granted Ms. Kumar time to make a phone call to Wells Fargo to
find out exactly how much she has paid and owes on the note. The recording of the trial
ended, however, and there is no indication in the record that the information was ever
obtained and presented to the court.
{¶17} On April 25, 2018, the court entered judgment in favor of USA Insulation,
stating: “Based upon consideration of the evidence, the law, and the credibility of the
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witnesses, Plaintiff failed to prove case [sic] by a preponderance of the evidence.” This
appeal followed, and Ms. Kumar has assigned two errors for our review:
[1.] The trial court erred in requiring appellant to present evidence of out-of-pocket note payments to a third party as the measure of contract damages caused by appellee’s admitted failure to complete performance.

[2.] The trial court erred in determining that appellee’s own admission of incomplete performance failed to constitute a breach of contract.

{¶18} Under her second assignment of error, which we review first, Ms. Kumar
argues the trial court erred by finding USA Insulation’s “admission of incomplete
performance was legally insufficient to establish liability for breach of contract.”
{¶19} “When the facts presented are undisputed, whether they constitute a
performance or a breach of a written contract, is a question of law for the court.” Luntz v.
Stern, 135 Ohio St. 225 (1939), paragraph five of the syllabus. “Where the party obligated
to perform under the contract makes an honest effort to do so, and there is no willful
omission on its part, substantial performance is all that is required to entitle the party to
payment under the contract.” Cleveland Neighborhood Health Serv., Inc. v. St. Clair
Builders, Inc., 64 Ohio App.3d 639, 644 (8th Dist.1989), citing Ashley v. Henahan, 56
Ohio St. 559, 569 (1897). “‘Substantial performance of a contract is interpreted to mean
that mere nominal, trifling, or technical departures are not sufficient to break a contract,
and that slight departures, omissions and inadvertencies should be disregarded.’” Id.,
quoting Kichler’s, Inc. v. Persinger, 24 Ohio App.2d 124, 126 (1st Dist.1970).
{¶20} Ms. Kumar’s argument is not well taken. First, the lower court did not make
a finding that USA Insulation admitted to incomplete performance: the court did not issue
findings of fact and conclusions of law, pursuant to Civ.R. 52, nor did either party move
the court to do so. Second, this argument is based on a false premise, to wit: that USA
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Insulation admitted it did not fully perform under the contract. No such admission was
made at the trial, the relevant portions of which have been provided above. Further, the
undisputed facts in this record establish that USA Insulation performed substantially
under the contract. Only five to ten percent of the project remained, or three to four hours
of labor, in order to correct the issues raised by Ms. Kumar. The remainder of the project
was not able to be completed, however, solely due to Ms. Kumar’s refusal to allow USA
Insulation into the home.
{¶21} Thus, we hold that the court did not err in failing to find that USA Insulation
was liable for breach of contract.
{¶22} Ms. Kumar’s second assignment of error is without merit.
{¶23} Under her first assignment of error, Ms. Kumar argues the trial court erred
by requiring her to provide evidence of payments to Wells Fargo as proof of her economic
damages, when there was no dispute that Ms. Kumar had fulfilled her payment obligation
under the contract through financing with Wells Fargo.
{¶24} We agree with Ms. Kumar’s general statement regarding the proper
measure of damages in a breach of contract action. “[M]oney damages awarded for
breach of contract are designed to place an aggrieved party in the same position he or
she would have been had the contract not been breached.” Buckley v. Ollila, 11th Dist.
Trumbull No. 98-T-0177, 2000 WL 263739, *2 (Mar. 3, 2000), citing Schulke Radio Prod.,
Ltd. v. Midwestern Broadcasting Co., 6 Ohio St.3d 436, 439 (1983). The party seeking
damages bears the burden of establishing the nature and extent of those damages with
reasonable certainty. Nelson Sand & Gravel, Inc. v. Ring, 11th Dist. Ashtabula No. 2001
A-0058, 2002-Ohio-6571, ¶18 (citations omitted).
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{¶25} Ms. Kumar’s argument is again, however, based on a false premise, to wit:
that she was entitled to receive any contractual damages. Before damages may be
awarded, the complaining party must first establish the existence of a contract and a
breach of that contract, i.e., “the failure without legal excuse of the other party to perform
when performance is due.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453,
2018-Ohio-15, ¶41, citing Natl. City Bank of Cleveland v. Erskine & Sons, 158 Ohio St.
450 (1953), paragraph one of the syllabus.
{¶26} Here, the lower court entered a general verdict in favor of USA Insulation,
and Ms. Kumar failed to request findings of fact and conclusions of law.
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise before the entry of judgment pursuant to Civ. R. 58, or not later than seven days after the party filing the request has been given notice of the court’s announcement of its decision, whichever is later, in which case, the court shall state in writing the findings of fact found separately from the conclusions of law.

Civ.R. 52. “Except as inconsistent procedures are provided in this chapter or in rules of
court adopted in furtherance of the purposes of this chapter, all proceedings in the small
claims division of a municipal court are subject to the Rules of Civil Procedure[.]” R.C.
1925.16. “There is nothing in R.C. Chapter 1925 which makes Civ.R. 52 inapplicable to
small claims cases or which would preclude a party from obtaining separate findings of
fact and conclusions of law.” Ohio Valley Laundry & Dry Cleaners v. Kent, 4th Dist. Gallia
No. 85 CA 24, 1986 WL 12633, *1 (Nov. 10, 1986); Larko v. Dearing, 11th Dist. Ashtabula
No. 2013-A-0007, 2013-Ohio-4304, ¶28.
{¶27} “‘Where a trial court hears and determines a cause without the intervention
of a jury and does not make separate findings of fact and conclusions of law, and no
10
request is made therefor, and any evidence is adduced to support the conclusions
reached under proper rules of law applicable thereto, a reviewing court will presume that
all proper rules of law were applied.’” French v. Weldy, 11th Dist. Ashtabula No. 93-A
1792, 1994 WL 660577, *2 (Nov. 18, 1994), quoting Scovanner v. Toelke, 119 Ohio St.
256 (1928), paragraph four of the syllabus; see also Pettet v. Pettet, 55 Ohio App.3d 128,
130 (5th Dist.1988).
{¶28} There is no question that a contract existed between Ms. Kumar and USA
Insulation. Evidence was adduced at the small claims trial to support the lower court’s
general verdict, however, in that Ms. Kumar did not establish a breach of that contract.
Because Ms. Kumar did not request findings of fact and conclusions of law, we presume
the lower court correctly applied the law in this regard. Ms. Kumar has failed to show that
the lower court applied an improper standard for liability or damages in this breach of
contract action. It is apparent from a review of the transcript that the court’s questioning
with regard to Wells Fargo was merely an attempt to determine the amount that USA
Insulation had already been paid under the contract and whether any amount was still
owed to USA Insulation.
{¶29} Ms. Kumar’s first assignment of error is without merit.

Outcome: The judgment of the Willoughby Municipal Court is hereby affirmed.

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