Kolich v. KNL Custom Homes, Inc.

[Cite as Kolich v. KNL Custom Homes, Inc., 2026-Ohio-3851.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) MICHAEL KOLICH, et al. C.A. No. 31419 Appellees v. APPEAL FROM JUDGMENT ENTERED IN THE KNL CUSTOM HOMES, INC., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CV 2022-06-2116 DECISION AND JOURNAL ENTRY Dated: September 30, 2026 SUTTON, Judge. {¶1} Defendant-Appellant KNL Custom Homes, Inc. appeals the judgment of the Summit County Court of Common Pleas. For the reasons that follow, this Court affirms. I. Relevant Background Information {¶2} In 2021, Plaintiffs-Appellees Michael and Tonya Kolich purchased a home from Todd and Kelly Folden. Todd Folden is the President of Defendant-Appellant KNL. In connection with the home sale, the Foldens and the Koliches agreed to add $30,000.00 to the purchase price of the home. The Koliches then contracted with KNL to finish the basement of the home for the $30,000.00 extra built into the home sale contract. The project was to include the installation of one full bathroom, three bedrooms with closets, a family room, and a storage room. The quote by KNL was for 1000 square feet. The quote stated KNL was to inform the owners in advance of any overages and was to receive approval of any overages prior to additional work being started. The  2 $30,000.00 quoted price for the project was based on a drawing made by Mr. Folden. The project commenced in late 2021 and proceeded through early 2022. The actual size of the basement finishing project ended up being 1720 square feet, resulting in a final price of $52,261.00, which reflected an overage of $22,261.00. {¶3} The Koliches did not pay the overage amount and KNL filed a mechanic’s lien on the property for the overage amount of $22,261.00. The Koliches filed a complaint against Todd Folden and KNL, setting forth claims for breach of contract, negligence, violations of Ohio’s Consumer Sales Practices Act (“CSPA”) pursuant to R.C. 1345.01 et seq., fraud, and slander of title. KNL and Mr. Folden answered the complaint and filed a counterclaim against the Koliches for breach of contract and unjust enrichment. {¶4} The matter proceeded to a jury trial. After the Koliches rested, KNL filed a written motion for a directed verdict. The trial court granted the motion on the Koliches’ negligence claim but denied the motion as to the remaining arguments. After KNL presented its evidence, it renewed its motion for a directed verdict, arguing the CSPA claim did not apply to home improvement projects. The trial court denied the motion. After closing arguments, KNL submitted a proposed jury interrogatory relating to the Koliches’ request for attorney fees in connection with the CSPA claim concerning whether KNL knowingly committed an act or practice that violated the CSPA. The trial court did not submit the proposed interrogatory to the jury but did instruct the jury that in order to award attorney fees, the jury must find KNL knowingly committed an act or practice that violated the CSPA and instructed the jury on the definition of “knowingly.” {¶5} The jury rendered the following verdicts: in favor of the Koliches on their breach of contract and CSPA claims, awarding the Koliches $4,000.00 in damages on the breach of contract claim, and attorney fees on the CSPA claim, but no compensatory damages; in favor of  3 the Koliches on KNL’s counterclaims; in favor of KNL on the Koliches’ claims for fraud and slander of title; and in favor of Mr. Folden on all of the Koliches’ claims. {¶6} KNL moved for judgment notwithstanding the verdict (“JNOV”), requesting that the trial court enter judgment in its favor on the Koliches’ CSPA claim, again arguing that the CSPA does not apply to the Koliches’ home improvement project. KNL further argued that based on the verdict forms, the Koliches are not entitled to attorney fees. The trial court denied the motion for JNOV. {¶7} KNL has appealed, raising three assignments of error for our consideration. To facilitate our analysis, we will consider the assignments of error out of order. II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED TO THE PREJUDICE OF [KNL] WHEN IT DENIED ITS MOTION FOR DIRECTED VERDICT, ASSERTING THAT THE OHIO CONSUMER SALES PRACTICE CLAIM DID NOT APPLY TO A RESIDENTIAL IMPROVEMENT PROJECT. {¶8} In its first assignment of error, KNL argues the trial court erred by denying its motion for directed verdict. Specifically, KNL argues the CSPA does not apply to the home improvement project at issue in this case. “An appellate court reviews a trial court’s ruling on a motion for a directed verdict de novo, as it presents an appellate court with a question of law.” Kane v. O’Day, 2007-Ohio-702, ¶ 18 (9th Dist.). {¶9} In 2012, the Ohio General Assembly created the Home Construction Service Suppliers Act (“HCSSA”) at R.C. 4722.01 et seq. and amended the CSPA to exclude transactions involving home construction services. The CSPA defines “consumer transactions” for purposes of the applicability of the CSPA and specifically excludes transactions involving a home construction service contract as defined in section R.C. 4722.01. R.C. 1345.01(A). Prior to 2024,  4 R.C. 4722.01 defined “home construction service” as “the construction of a residential building.” R.C. 4722.01(B) currently states, “’[h]ome construction service’ means the construction of a residential building, including the creation of a new structure and the repair, improvement, remodel, or renovation of an existing structure.” (Emphasis added.) The language “including the creation of a new structure and the repair, improvement, remodel, or renovation of an existing structure” was not added by the Ohio General Assembly until September 20, 2024. Here, the home improvement contract and project occurred in 2021 and 2022, prior to the addition of the new language to R.C. 4722.01(B). {¶10} Discussing the prior version of R.C. 4722.01(B) of the HCSSA, the Eleventh District Court of Appeals determined it only applied to new construction, not the repair or improvement of something already existing. Beder v. Cerha Kitchen & Bath Design Studio, L.L.C., 2022-Ohio-4463, ¶ 13-14 (11th Dist.), citing State ex rel. Celebrezze v. Natl. Lime & Stone Co., 68 Ohio St.3d 377, 382 (1994). This determination is supported by the fact that the legislature subsequently amended the statutory definition of “home construction service” to specifically include “the repair, improvement, remodel, or renovation of an existing structure.” See Orion Mgt., Inc. v. Kaeka, 2025-Ohio-1047, ¶ 96 (9th Dist.) (Carr, J. dissenting in part) (“In my view, the recent change to R.C. 4722.01(B) to clearly include remodeling within the definition of home construction service was made in order to alter the existing law, not to more clearly set forth the legislature’s original intent; this is so, because prior to the change, all appellate courts which had addressed the issue had concluded that home construction service did not include remodeling. Thus, prior to the change, the existing law was that home construction service did not include remodeling and thus remodels fell within the CSPA.”); and Lambright v. New Age Dome Construction, LLC, 2026 WL 681726, *1 (W.D. Ohio Mar. 11, 2026) (“It is impossible to apply  5 this amendment retroactively, because compliance with either the HCSSA or CSPA had to occur at the time of the transaction . . .”).1 {¶11} Here, there is no dispute that the home improvement project was not the construction of a new building, but rather the renovation or improvement of an existing structure. There is likewise no dispute the contract at issue was made in 2021, and the work was done in 2021 and 2022, prior to the amendment of R.C. 4722.01(B). Therefore, the statutory definition of “home construction service” as it existed when the contract was formed and when the work was done did not exclude the home improvement project at issue in this case and the trial court did not err when it denied KNL’s motion for directed verdict. {¶12} Accordingly, KNL’s first assignment of error is overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED TO THE PREJUDICE OF [KNL] WHEN IT DENIED ITS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. {¶13} In its third assignment of error, KNL argues the trial court erred by denying its motion for JNOV. KNL specifically argues because the jury awarded the Koliches no compensatory damages on their CSPA claim, they are not entitled to attorney fees pursuant to R.C. 1345.09(F). KNL also argues because the verdict form did not contain a finding that the violation of the CSPA by KNL was committed “knowingly,” and the trial court did not submit an interrogatory to the jury concerning whether KNL acted “knowingly,” the Koliches were not 1 The Supreme Court of Ohio recently determined a conflict exists and ordered the parties to brief the following issue: “[w]hether the original, pre-amendment version of the [Home Construction Service Suppliers Act], which defines ‘home construction service’ as ‘the construction of a residential building[,]’ applies to contracts for the repair, improvement, remodel, or renovation of existing residential structures or . . . applies only to contracts for building new residential structures.” Worch Lumber, Inc. v. Fetzer, 2026-Ohio-3595.  6 entitled to attorney fees. This Court will address the latter argument in our discussion of KNL’s second assignment of error and will focus our analysis here on whether KNL has shown the jury’s verdict was based on insufficient evidence. {¶14} “A motion for a directed verdict assesses the sufficiency of the evidence, not the weight of the evidence or the credibility of the witnesses.” Ulrich v. Mercedes-Benz USA, L.L.C., 2010-Ohio-348, ¶ 6 (9th Dist.), quoting Kane v. O’Day, 2007-Ohio-702, ¶ 18 (9th Dist.). “The motion ‘does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence.’” Id., quoting Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 2002-Ohio-2842, ¶ 4, quoting O’Day v. Webb, 29 Ohio St.2d 215 (1972), paragraph three of the syllabus. “Accordingly, we review [a] . . . ruling on a motion for a directed verdict de novo.” Id., quoting Northeast Ohio Elite Gymnastics Training Ctr., Inc. v. Osborne, 2009-Ohio 2612, ¶ 6 (9th Dist.). {¶15} R.C. 1345.09(F) provides in relevant part: The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed and limited pursuant to section 1345.092 of the Revised Code, if either of the following apply: ... (2) The supplier has knowingly committed an act or practice that violates this chapter. {¶16} “JNOV is proper if upon viewing the evidence in a light most favorable to the non moving party and presuming any doubt to favor the nonmoving party reasonable minds could come to but one conclusion, that being in favor of the moving party.” Gibson Bros., Inc. v. Oberlin College, 2022-Ohio-1079, ¶ 21 (9th Dist.), quoting State v. The Jacts Group, LLC, 2020-Ohio 1173, ¶ 29 (9th Dist.). “As a motion for JNOV is decided as a matter of law, this Court will address these arguments de novo.” Gibson Bros., Inc. at ¶ 21.  7 Prevailing Party {¶17} KNL argues because the jury failed to award compensatory damages to the Koliches on their CSPA claim, they are not a prevailing party pursuant to R.C. 1345.09(F). In denying KNL’s motion for JNOV, the trial court stated in part: the CSPA provides an alternative $200.00 statutory award for a CSPA violation in the event the consumer is unable to prove actual damages or the treble damages are less than $200.00. . . . In this case, the jury did not award the [Koliches] compensatory damages. However, the [Koliches] must receive the $200.00 statutory award. . . Consequently, the [c]ourt finds that [the Koliches] are a prevailing party pursuant to the [CSPA.] (Internal citations omitted). R.C. 1345.09(B) provides in relevant part: “Where . . . an act or practice determined by a court of this state to violate [the CSPA] . . . the consumer may rescind the transaction or recover . . . three times the amount of the consumer's actual economic damages or two hundred dollars, whichever is greater . . .” Here, there is no dispute the jury found in favor of the Koliches on their CSPA claim against KNL. Thus, in the absence of actual economic damages, R.C. 1345.09(B) requires an award of $200.00 in statutory damages. Therefore, the trial court did not err in determining the Koliches were prevailing parties. Knowingly {¶18} The trial court may award reasonable attorney fees to the prevailing party if the defendant has “knowingly committed an act or practice that violates” the CSPA. R.C. 1345.09(F)(2). In order to determine if there was sufficient evidence presented to the jury that KNL acted “knowingly,” this Court would need to review the evidence submitted to the jury. However, KNL has not provided this Court with a complete transcript of the trial. {¶19} The obligation to provide all portions of the record necessary for appellate review falls to the appellant. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). “When portions of the transcript necessary for resolution of assigned errors are omitted from the record,  8 the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court’s proceedings, and affirm.” Id. {¶20} KNL’s argument concerning whether KNL acted “knowingly” requires this Court to not only consider the jury’s decision, but the evidence presented at trial. See State v. Fitzgerald, 2019-Ohio-1038, ¶ 10 (9th Dist.). Because the transcript of the trial is not part of the appellate record here, this Court must presume regularity and affirm the judgment. Id. {¶21} Because the Koliches were prevailing parties and because, in the absence of the trial transcript, this Court presumes regularity in the jury’s determination that KNL acted “knowingly,” KNL has not established trial court erred in denying KNL’s motion for JNOV. {¶22} Accordingly, KNL’s third assignment of error is overruled. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED TO THE PREJUDICE OF [KNL] WHEN IT REFUSED TO SUBMIT AN INTERROGATORY TO THE TRIER OF FACT TO DETERMINE WHETHER AN ALLEGED VIOLATION OF THE OHIO CONSUMER SALES PRACTICES ACT WAS COMMITTED KNOWINGLY. {¶23} KNL argues in its second assignment of error the trial court erred by refusing to submit its proposed interrogatory to the jury concerning whether KNL knowingly committed an act or practice that violated the CSPA. Therefore, KNL argues, because an award of attorney fees requires that KNL acted knowingly, the award of attorney fees was improper. {¶24} Civ.R. 49(B) provides in relevant part: The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. . . . The interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law. When the content and form of a proposed interrogatory are proper, Civ.R. 49 imposes a mandatory duty to submit the interrogatory to the jury. Moretz v. Muakkassa, 2013-Ohio-4656, ¶ 79. “The  9 purpose of an interrogatory is to ‘test the jury’s thinking in resolving an ultimate issue so as not to conflict with its verdict.’” Freeman v. Norfolk & W. Ry. Co., 69 Ohio St.3d 611, 613 (1994). {¶25} “While it is mandatory that the court submit to the jury properly drafted interrogatories, the trial court retains discretion to reject interrogatories that are inappropriate in form or content.” Freeman at 613, citing Ragone v. Vitali & Beltrami, Jr., Inc., 42 Ohio St.2d 161, 71 (1975), paragraph one of the syllabus. “A court may reject a proposed interrogatory that is ambiguous, confusing, redundant, or otherwise legally objectionable.” Freeman at 613, citing Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97 (1992), paragraph three of the syllabus. {¶26} The trial court determined the proposed interrogatory was redundant. We agree. In denying KNL’s request to submit the proposed interrogatory to the jury, the trial court stated that KNL did not show that a jury interrogatory regarding whether an act was knowingly committed was necessary for a jury’s verdict. At a hearing with counsel, the trial court went over the proposed jury instructions, which were to include the following concerning the CSPA claim: If you find that [KNL] ha[s] committed an unfair or deceptive act or practice, you will also decide whether [KNL] acted knowingly. To find that an act or practice was committed knowingly, you must find that [KNL] had actual knowledge that they were engaging in the act or practice. However, it is not necessary that [KNL] knew the act or practice violated the law. Knowingly defined. A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result, or be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.  10 When discussing KNL’s request for an interrogatory concerning whether KNL knowingly committed an act or practice that violated the CSPA, the trial court stated, “[a]nd I think the instructions cover what you are asking me to do in an interrogatory.” {¶27} Based on the foregoing, we conclude because the jury instructions included a detailed instruction on the term “knowingly,” the trial court did not abuse its discretion in determining an interrogatory on whether KNL acted “knowingly” would be redundant. Accordingly, KNL’s second assignment of error is overruled. III. {¶28} For the forgoing reasons, KNL’s assignments of error are overruled and the judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.  11 Costs taxed to Appellant. BETTY SUTTON FOR THE COURT HENSAL, J. CONCURS. FLAGG LANZINGER, P. J. DISSENTING. {¶29} I respectfully dissent because the majority’s opinion is contrary to this Court’s decision in Orion Mgt., Inc. v. Kaeka, 2025-Ohio-1047 (9th Dist.). In Orion, this Court concluded that HCSA as originally enacted applies to contracts for new construction of homes as well as repairs, remodels, and renovations. Id. at ¶ 29-33. In doing so, this Court expressly rejected the reasoning of the Eleventh District Court of Appeals upon which the majority relies. Id. at ¶ 27- 32. I would conclude that the contract at issue in this case was a home construction services contract within the definition of former R.C. 4722.01(B) and that the CSPA did not apply. See R.C. 1345.01(A) (specifically excluding transactions involving a home construction service contract from the definition of consumer transactions for the purposes of the CSPA). Therefore, I would sustain all of KNL’s assignments of error. APPEARANCES: CLARK D. RICE, Attorney at Law, for Appellant. THOMAS C. LOEPP, Attorney at Law, for Appellees.