COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72703 DOROTHY J. PHILLIPS : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RELIABLE BUILDERS, INC., et al: : PER CURIAM Defendant-appellants: : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 4, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 307,209 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: BRYAN L. ADAMSON Attorney at Law Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106 For defendant-appellants: ROBERT D. WILSON Attorney at Law 29525 Chagrin Boulevard, #203 Cleveland, Ohio 44122-4601 PER CURIAM: 2 This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. Defendants-appellants Reliable Builders, Frank Giampietro and T&S Builders appeal from the decision of the Cuyahoga County Court of Common Pleas, which granted plaintiff-appellee's oral motion for declaratory judgment adverse to them, rescinded the contract between the parties, and granted judgment in favor of plaintiff- appellee on appellants' counterclaim against her. For the reasons stated below, we reverse the decision of the trial court and remand the matter for trial. The record reflects that appellee filed a complaint as to these appellants alleging that: 1) appellants violated R.C. 1345, et seq., the Home Solicitation Sales Act, regarding electrical work performed pursuant to a contract for $4300 by their failure to provide the proper Notice of Cancellation as required by 1345.23(B)(2) ; 2) appellee exercised her right to cancel, and appellants were therefore required to release the mechanic's lien placed on her property; 3) appellants' acts constitute unfair practices pursuant to R.C. 1345.02; and, 4) appellants failed to properly serve notice of the filing of a mechanic's lien as required by R.C. 1311.07. The complaint: 1) requested the court to declare the contract cancelled (R.C. 1345.23[C]); 2) requested the court to declare the contract rescinded (R.C. 1345.09); 3) re- quested an injunction against appellants to prohibit the 3 continuation of the practices complained of (R.C. 1345.09[D]); 4) requested the court to declare the mechanics lien invalid (R.C. 1311.07); and 5) requested costs and attorneys fees (R.C. 1345.09[F][2]). On May 31, 1996, appellants Reliable Builders and T&S Builders answered the complaint, denying inter alia that the transaction was governed by R.C. 1345.21(A) as alleged in paragraph 16 of the complaint. Further, appellant T&S Builders counterclaimed in the amount of $4,300, the value of the construction services performed pursuant to the agreement between the parties. Appellee, in answer to the counterclaim, admitted that the amounts due remained unpaid, averring, by way of defense, that such refusal was justified. A case management conference was held on August 21, 1996, at which time jury trial was scheduled by the court for February 20, 1997. Appellant Giampietro filed his answer with leave of court on October 23, 1996, denying inter alia that the transaction was governed by R.C. 1345.23. Discovery was had. On February 18, 1997, appellee moved the court to dismiss the counterclaim and moved for declaratory judgment on her complaint. Both motions were denied by the court as untimely on February 20th. The same day, February 20, 1997, prior to the commencement of trial, discussion by counsel and the court was had on the record regarding document production, discovery, and trial exhibits. At that time, counsel for appellee orally renewed her motion to dismiss and motion for declaratory judgment, which alleged that the transaction between [appellee] and [appellants] is a home solicitation sale of goods 4 and services as defined in R.C. 1345.21(A), the Home Solicitation Sales Act. (Complaint, 16). Although [appellants] deny this for want of knowledge, (Answer, 11), they have failed to offer any evidence to the contrary. Counsel for appellee asserted that due to the failure of appellants to properly adhere to the requirements of the notice of cancellation, appellee was entitled to cancel the contract at any time. Consequently, appellee argued, where appellants performed their services during the cancellation period, they did so at their own risk and are not entitled to any payment for the work that they performed. Counsel for appellants challenged appellee's assertions by arguing that the contract conforms with the statutory requirements, that the documents of July 18thand July 29th need to be read together and that from the time the agreement was accepted, appellee had her three-day period in which to cancel. Without commencing trial on the disputed issues, the court summarily entered its decision, stating, Motion for declaratory judgment of plaintiff, filed 2/18/97, heard and argued in open court. Motion is granted. Contract between the parties is rescinded. Judgment for pltf. on deft's counterclaim. FINAL. Appellants timely appealed this decision. On May 8, 1997, this court dismissed the appeal pursuant to Civ.R. 54(B). On May 7, 1997, appellee moved the trial court for final judgment on the remaining issues of attorney fees and the request for removal of the mechanic's lien on her property. Appellee's motion was granted in part as to ordering the removal of 5 the mechanic's lien; it was denied as to the request for attorney fees. Appellants timely appeal this final order of the court and present three assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED WHEN IT PERMITTED PLAINTIFF TO MAKE AN ORAL MOTION FOR DECLARATORY JUDGMENT BEFORE THE COMMENCEMENT OF THE TRIAL. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED WHEN IT GRANTED PLAINTIFF'S MOTION FOR A DECLARATORY JUDGMENT AND DISMISSED DEFENDANT'S COUNTERCLAIM. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED WHEN IT RESCINDED THE CONTRACT BETWEEN PLAINTIFF AND DEFENDANT AND ORDERED THE REMOVAL OF THE MECHANICS LIEN FROM PLAINTIFF'S PROPERTY. Appellants' first and second assignments of error are interrelated and will be discussed together. Essentially, appellants argue that the trial court abused its discretion when it entertained and granted the appellee's renewed motion for declaratory judgment and dismissed appellants' counterclaim without taking evidence where matters were in dispute. We agree. A declaratory judgment action is a special proceeding, and an order entered therein that affects a substantial right is a final appealable order. General Acc. Ins. Co. v. Insurance Co. of North America (1989), 44 Ohio St.3d 17. The record reflects that this action was brought by appellee as a declaratory action requesting the court to determine the rights of the parties to a contract entered into pursuant to R.C. 1345.21(A). Two days before trial, 6 appellee filed her motion for declaratory judgment, which was denied by the court as untimely. On the morning of trial, appellee orally renewed the motion. Here, after the close of the pleadings, appellee requested by motion the same declaratory relief as was requested in the complaint. We acknowledge that the Civil Rules do not provide for a motion for declaratory judgment. Fuller v. German Motor Sales, Inc.(1988), 51 Ohio App.3d 101. Appellee, however, contends that this motion should be construed as a motion for summary judgment on the claims in the complaint. After careful review of the record before us, we find that appellee's motion for declaratory judgment requests the same relief in her motion as she prayed for in her complaint for declaratory judgment and conforms to the requirements of Civ.R. 12(C). Further, it is apparent that the lower court treated the motion as a motion for judgment on the pleadings as it granted appellee the relief that she sought based solely upon the pleadings before it. Pursuant to Civ.R. 12(C), pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made, along with the reasonable inferences drawn therefrom. Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402. A Civ.R. 12(C) motion presents only questions of law, and it may be granted only when no material factual issues exist, and the movant is entitled to judgment as a matter of law. Id. at 403. See, also, Peterson v. Teodosio (1973), 34 Ohio St.2d 161. 7 The 345.23 enti is uncontroverted that appellants, in their answers to thcomplaint allege complaint, denied that the transaction upon which this action is predicated is controlled by R.C. 1345.21(A), the Home Solicitation Sales Act.1 Consequently, when we view the pleadings in a light most favorable to appellants, as we must do, we find that material issues of fact exist and do not find that appellee is therefore entitled to judgment as a matter of law. Further, in ruling on appellee's motion to dismiss appellants' counterclaim pursuant to Civ.R. 12(B)(6), the court must, as a matter of law, accept all the allegations in the complaint as true. Perez v. Cleveland (1993), 66 Ohio St.3d 397. To grant such a motion, it must appear beyond a reasonable doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. Greely v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228. Appellants contend that they are entitled to the value of the work that they performed, $4300.00. When we review the motion to dismiss in a light most favorable to appellants, as we must do, we find that appellants have alleged sufficient facts in their counterclaim that could entitle them to 1Whether appellants would contend that they are outside the statute because they have not contracted for consumer goods or services as defined by the statute or whether appellants would contend that they fit an exception to the statute pursuant to R.C. 1345.21(A)(1-7) cannot be determined from the record in this case. Appellants were denied the opportunity to present their defenses to the court. 8 recovery. Consequently, we find it was an abuse of discretion for the trial to grant the motion to dismiss. Accordingly, we find Assignments of Error One and Two are well taken. The decision of the trial court in which it improperly granted declaratory judgment to appellee and granted the dismissal of appellants' counterclaim is reversed, and this matter is remanded for trial on the merits. Appellants, in their third assigned error, complain that the trial court erred when it rescinded the contract between the parties and ordered the removal of the mechanic's lien from the plaintiff's property. In light of our disposition of appellants' first two assigned errors, we find that this error is moot. 9 This cause is reversed and remanded to the lower court for reassignment. The reassigned lower court is directed to conduct further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. 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. ______________________________ TERRENCE O'DONNELL, PRESIDING JUDGE ___________________________________ TIMOTHY E. McMONAGLE, JUDGE ___________________________________ LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .