Crystal Dental Prosthetics, Inc. v. Dagostino , 2012 Ohio 3823 ( 2012 )

[Cite as Crystal Dental Prosthetics, Inc. v. Dagostino, 2012-Ohio-3823.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98200
CRYSTAL DENTAL PROSTHETICS, INC.
PLAINTIFF-APPELLANT
vs.
MICHAEL DAGOSTINO DDS
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Civil Appeal from the
Parma Municipal Court
Case No. 11CVI-03389
BEFORE: Rocco, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: August 23, 2012
ATTORNEY FOR APPELLANT
Fadi G. Boumitri
1797 Pearl Road
Brunswick, Ohio 44212
ATTORNEY FOR APPELLEE
Bradley P. Toman
Carlisle, McNellie, Rini, Kramer & Ulrich Co., LPA
24755 Chagrin Blvd., Suite 200
Cleveland, Ohio 44122
KENNETH A. ROCCO, J.:
{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R.11.1 and
Loc.App.R. 11.1, plaintiff-appellant Crystal Dental Prosthetics, Inc. (“CDP”) appeals
from the order of the Parma Municipal Court that adopted the magistrate’s decision to
award $1,311.84 to defendant-appellee Michael Dagostino, D.D.S. in this
breach-of-contract action.
{¶2} The purpose of an accelerated appeal is to allow this court to render a brief
and conclusory opinion. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d
158, 463 N.E.2d 655 (1st Dist.1983); App.R. 11.1(E).
{¶3} CDP presents seven assignments of error. In essence, CDP asserts that the
magistrate misapplied the law to the facts presented at the hearing, therefore, the
municipal court acted improperly in adopting the magistrate’s decision. This court
disagrees. Consequently, CDP’s assignments of error are overruled, and the municipal
court’s order is affirmed.
{¶4} CDP filed a complaint in the municipal court against Dagostino for breach of
contract and unjust enrichment, claiming CDP had provided goods to Dagostino but he
had failed to pay $1,688.16 he owed to CDP on his account. CDP attached no statement
of the account to its complaint.
{¶5} Dagostino filed an answer and a counterclaim, alleging that the goods CDP
provided were substandard and unusable, and that he had been required to incur
additional costs to replace them. Dagostino requested judgment on his counterclaim in
the amount of $3,000.00.
{¶6} The matter proceeded to trial before a magistrate. After hearing the
testimony and considering the evidence, the magistrate found that Dagostino had accepted
seven dental pieces from CDP but refused to pay for them, so CDP deserved judgment on
its complaint.
{¶7} The magistrate further determined, however, that CDP supplied five dental
crowns to Dagostino for which he submitted payment to CDP that were substandard.
Because Dagostino had communicated his dissatisfaction to CDP but problems persisted,
and because Dagostino had been required to replace the items and to incur additional
labor, he deserved judgment on his counterclaim. Judgment was rendered for Dagostino
in the amount of the difference, viz., $1,311.84.
{¶8} The municipal court subsequently overruled CDP’s objections to the
magistrate’s decision and issued an order adopting it. CDP appeals from that order with
seven assignments of error.
{¶9} CDP argues in its first assignment of error that, in granting Dagostino
judgment on his counterclaim, the magistrate failed to impose a duty on Dagostino to
mitigate his damages. This argument is rejected.
{¶10} Dagostino presented evidence to prove that, in supplying the goods at issue,
CDP breached R.C. 1302.27 and 1302.28, the implied warranties of merchantability and
fitness. Dagostino further provided evidence that he notified CDP of the problems he
was experiencing with the dental pieces CDP supplied, but the problems remained.
Therefore, pursuant to R.C. 1302.65(B) and (D), Dagostino was not barred from seeking
the remedy provided by R.C. 1302.88. Bldrs. Kitchens of Stark Cty., Inc. v. Sibel, 189
Ohio App.3d 41, 2010-Ohio-890, 937 N.E.2d 570 (1st Dist.), ¶ 36-37; AFG, Inc. v.
Great Lakes Heat Treating Co., 51 Ohio St.3d 177, 179–180, 555 N.E.2d 634 (1990).
{¶11} In contravention of App.R. 16(A)(7), CDP argues its second and third
assignments of error together. Consequently, this court declines to address them.
Patino v. Faust, 8th Dist. No. 90475, 2008-Ohio-6280, ¶ 7; App.R. 12(A)(2).
{¶12} Similarly, CDP’s fourth, fifth, and sixth assignments of error are
unsupported by citations to authority as required by App.R. 16(A)(7). Consequently, this
court also declines to address them. App.R. 12(A)(1)(b) and (A)(2).
{¶13} In its seventh assignment of error, CDP argues that, in granting Dagostino
judgment on his counterclaim, the magistrate failed to apply the “customs and industry
standards” that applied to the parties. CDP asserts the industry required Dagostino to
absorb the cost of the work involved in replacing and fitting “bad” dental pieces for his
patients. The evidence presented at the hearing, however, does not support such an
assertion. See, e.g., Parsell v. Bielser, 3d Dist. No. 7-01-06, 2001-Ohio-2176; Bldrs.
Kitchens of Stark Cty., Inc., 189 Ohio App.3d 41, 2010-Ohio-890, 937 N.E.2d 570 (2d
Dist.).
{¶14} Accordingly, CDP’s seventh assignment of error is overruled.
{¶15} The municipal court’s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR