Lambright v. New Age Dome Construction, LLC et al

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
James Lambright, 	Case No. 3:21-cv-865
Plaintiff,
v. 	MEMORANDUM OPINION
AND ORDER
New Age Dome Construction, LLC, et al.,
Defendants.
I. 	INTRODUCTION
Defendants New Age Dome Construction, LLC, and John Johnson, New Age’s sole
member, object to the inclusion of a jury instruction regarding the Ohio Consumer Sales Practices
Act (“CSPA”) claim brought by Plaintiff James Lambright. (Doc. No. 77). Lambright opposed
Defendants’ objection and included his arguments in opposition in the parties’ joint proposed jury
instructions submitted to my chambers via email on January 26, 2026. For the reasons stated below,
I overrule Defendants’ objection.
II. 	DISCUSSION
A proposed jury instruction must be “a correct statement of the law[.]” Williams v. Eau Claire
Public Schs., 397 F.3d 441, 445 (6th Cir. 2005). In diversity cases like this one, a federal court applies
the substantive law as identified by the highest state court. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
“If the state’s highest court has not yet addressed the issue presented, [courts] must predict how the
[state] court would rule by looking to all available data, including decisions of the states’ appellate
courts.” In re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., 756 F.3d 917, 937 (6th Cir. 2014)
Case: 3:21-cv-00865-JJH Doc #: 88 Filed: 03/11/26 1 of 6. PageID #: <pageID>

2
(citing Allstate Ins. Co. v. Thrifty Rent–A–Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001) (further
citations omitted) (alterations added)).
While I previously found Defendants liable for violating the CSPA on six occasions and
granted summary judgment in Lambright’s favor as to those violations, (Doc. No. 54 at 11-14),
Defendants argue the CSPA does not in fact apply to the circumstances underlying this case.
Defendants contend that a decision issued by the Ohio Ninth District Court of Appeals after I
issued my summary judgment decision establishes that any statutory claim arising out of a contract
for home repairs must be brought under the Ohio Home Construction Service Suppliers Act
(“HCSSA”), and not pursuant to the CSPA. (Doc. No. 77 at 1) (citing Orion Mgmt., Inc. v. Kaeka, 269
N.E.3d 483 (Ohio Ct. App. 2025).
As I noted above, Lambright disagrees with Defendants’ interpretation of Ohio law. I
incorporate his arguments from the joint proposed jury instructions here:
Ohio law supports that the CSPA, not the HCSSA, applies because this was merely
repairs on an existing residence, and the General Assembly agreed as they later
amended the law to change the definition of “construction services” to include
repairs etc. far after the facts in this case, and such was not retroactive. Ohio laws
can only be applied retroactively where (1) there is express legislative intent that it be
applied retroactive, and (2) it does not affect substantive rights. State ex rel. Romans v.
Elder Beerman Stores Corp., 100 Ohio St.3d 165, 2003-Ohio-5363, 797 N.E.2d 82, ¶¶
11-14. Here, not only is there no such express legislative intent in the amendment,
but also such retroactive application would impose new burdens, obligations, and
liabilities on a past transaction that occurred years ago (since the HCSSA
requirements are profoundly different than the CSPA requirements), and also it
would eliminate accrued substantive rights of consumers under the CSPA, including .
. . accrued rights to treble and statutory damages. Id.; R.C. 1345.09(B); Compare
OAC 109:4-3-01 et seq. with R.C. 4722.01 et seq. The HCSSA and CSPA have
contradictory contract language requirements on excess costs and estimate rights, for
example. [Defendants] failed to argue (because they cannot) that the amendment
was expressly retroactive. It is impossible to apply this amendment retroactively,
because compliance with either the HCSSA or CSPA had to occur at the time of the
transaction—how could a law retroactively change which law applied at the time, and
how would that be fair to the contracting parties that used the disclosures and
requirements of one law instead of the other?
The Orion decision is simply wrong. It contradicts the three other appellate decisions
that came before it, including one decision written by John Eklund, who was one of
Case: 3:21-cv-00865-JJH Doc #: 88 Filed: 03/11/26 2 of 6. PageID #: <pageID>

3
the co-sponsors of the original HCSSA and uniquely informed and knowledgeable as
to the legislature’s enactment and intent at the time, but it is based on flawed logic
and ignoring other district precedents and decisions. Beder v. Cerha Kitchen and Bath
Design Studio, LLC, 2022-Ohio-4463, ¶ 7-18 (11th Dist.) (written by John Eklund, co-
sponsor of the 2012 HCSSA); Estate of Tomlinson v. Mega Pool Warehouse, Inc., 2023-
Ohio-229, ¶ 17-27 (5th Dist.), rev’d on other grounds, 174 Ohio St. 3d 512, 2024-Ohio-
1065, 237 N.E.3d 212 (but with an appeal on the HCSSA-CSPA issue not allowed by
the Supreme Court of Ohio in 170 Ohio St. 3d 1428, 2023-Ohio-1665, 209 N.E.3d
713 (May 23, 2023); A1 Heating and Cooling, Inc. v. Thomas, 2024-Ohio-109, ¶ 55-57
(5th Dist.). John Eklund can speak authoritatively, and did speak authoritatively in
Beder, as to what the legislature said and intended as to the 2012 HCSSA. He would
know, as a co-sponsor of that legislation. The Supreme Court of Ohio had the
opportunity to adopt the Orion court’s position[] but refused to accept the appeal of
that issue in Estate of Tomlinson. All of these facts cut against the legitimacy of Orion
and cause its reasoning to be questioned.
The Supreme Court of Ohio has not expressly ruled on the issue in dispute here, though, as
Lambright notes, the Supreme Court of Ohio in Tomlinson declined to accept jurisdiction of the
defendant’s appeal of the appellate court’s ruling that the CSPA, and not the HCSSA, applied to
remodeling contracts.
I do not believe the court’s decision in Beder is entitled to special deference merely because
the decision was authorized by Judge Eklund. But I find the Beder court’s reasoning persuasive.
That court noted that, at the time the HCSSA was passed by the Ohio legislature, there was a
Supreme Court of Ohio decision which defined “‘construction’ as ‘“[t]he creation of something new, as
distinguished from the repair or improvement of something already existing.”’” Beder v. Cerha Kitchen
& Bath Design Studio, LLC, 2022-Ohio-4463, 2022 WL 17578912, at *2 (Ohio Ct. App. Dec. 12,
2022) (quoting State ex rel. Celebrezze v. Nat’l Lime & Stone Co., 627 N.E.2d 538, 542 (1994)) (further
quoting Black’s Law Dictionary 312 (6th Ed. 1990)) (emphasis and alteration by State ex rel Celebrezze).
Observing that “‘[t]he Legislature is presumed to know the decisions of [the Supreme Court of
Ohio]’” and the meaning of “‘words or phrases that have been defined or construed by’” that court,
the Beder court concluded it “must presume that the legislature intended the term ‘construction’ to
have the meaning set forth in Celebrezze.” Beder, 2022 WL 17578912, at *3.
Case: 3:21-cv-00865-JJH Doc #: 88 Filed: 03/11/26 3 of 6. PageID #: <pageID>

4
The Orion court disagreed with the Beder court’s conclusion, contending the Supreme Court
of Ohio’s “decision to apply the more limited definition of ‘construction’ stemmed from (1) its
interpretation of other words used in the administrative code section at issue, (2) the reasonableness
of that interpretation, and (3) the ‘considerable deference’ it had to afford the Ohio Environmental
Protection Agency’s interpretation of its own rules.” Orion, 269 N.E.3d at 493 (quoting State ex rel.
Celebrezze, 627 N.E.2d at 542). That court declined to adopt the definition of “construction” as it
was construed in State ex rel. Celebrezze, which relied on a since-revised Black’s Law Dictionary
definition, concluding the Supreme Court of Ohio did not “intend[] to supply a singular definition
to the term ‘construction’ for all future cases,” rejected that definition as “obsolete,” and held that
the contemporaneous meaning of “construction” was one that encompassed both new construction
and remodeling. Orion, 269 N.E.3d at 493. I do not find this analysis persuasive for two reasons.
The first reason is that the Orion court’s description of the Supreme Court of Ohio’s path to
adopting its definition of “construction” is inaccurate. The Supreme Court of Ohio’s application of
its adopted definition did not “stem[] from” the matters the Orion court highlighted. Id. Rather, the
Supreme Court of Ohio first adopted its definition of “construction” and proceeded forward from
there.
In State ex rel. Celebrezze, the Supreme Court of Ohio construed an Ohio Administrative Code
provision regulating the “‘installation’ of an air contaminant source.” State ex rel. Celebrezze, 627
N.E.2d at 541. The Ohio Administrative Code defined the term “‘install’” to mean “to construct,
erect, locate or affix any air contaminant source.” Id. at 542 (quoting Ohio Admin. Code § 3745-31-
01). The Supreme Court of Ohio, observing that “‘[t]he uniform conclusion is that “construction”
imports the creation of something new and original that did not exist before,’” held that
“installation” therefore referred to a new source of air contaminants and not the modification of an
existing source. State ex rel. Celebrezze, 627 N.E.2d at 542 (quoting United States v. Narragansett
Case: 3:21-cv-00865-JJH Doc #: 88 Filed: 03/11/26 4 of 6. PageID #: <pageID>

5
Improvement Co., 571 F. Supp. 688, 693 (D.R.I. 1983)) (further citations in Narragansett omitted by
State ex rel. Celebrezze). Thus, the Supreme Court of Ohio did not “apply the more limited definition
of ‘construction,’” Orion, 269 N.E.3d at 493, it adopted a definition supported by “the unanimity of
Courts’ interpretation of the term.” Narragansett, 571 F. Supp. at 693.
It is true, as the Orion court noted, that the Supreme Court of Ohio reached its conclusion
while “conscious of the long-accepted principle that considerable deference should be accorded to
an agency’s interpretation of rules the agency is required to administer.” State ex rel. Celebrezze, 627
N.E.2d at 542 (citations omitted). But the Orion court incorrectly implies that the principle of
deference led to the Supreme Court of Ohio’s adoption of the definition of “construction” it chose.
To the contrary – the Supreme Court of Ohio held that the agency’s attempt to interpret
“installation” as including remodeling or replacement was “unreasonable.” State ex rel. Celebrezze, 627
N.E.2d at 542 (emphasis added). Stated otherwise, the Supreme Court of Ohio adopted its
definition of “construction” even after offering substantial deference to the agency’s more expansive
definition.
The second reason I find the Orion court’s decision unpersuasive stems from its discussion
of a 2024 amendment to the HCSSA, which changed the definition of a “home construction
service” from “the construction of a residential building” to “the construction of a residential
building, including the creation of a new structure and the repair, improvement, remodel, or
renovation of an existing structure.” Orion, 268 N.E.3d at 492, 494 (citations and internal quotation
marks omitted). The majority of the panel in Orion, believed “th[is] amendment eliminates any
doubt as to whether the legislature intended the [HCSSA] to apply only to new construction.” Id. at
494.
But the 2024 amendment to the HCSSA was not written on a clean slate. As the dissenting
judge in Orion observed, “the recent change to [the HCSSA]
Case: 3:21-cv-00865-JJH Doc #: 88 Filed: 03/11/26 5 of 6. PageID #: <pageID>

6
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.
Id. at 508 (Carr, J., concurring in part and dissenting in part) (citation omitted).
I conclude that if the Supreme Court of Ohio had considered this issue in a case predating
the 2024 amendment to the HCSSA, that court would have adopted the interpretation of the term
“construction” applied by the Fifth and Eleventh District Courts of Appeal in Beder, Tomlinson, and
A1 Heating and Cooling. Therefore, I overrule Defendants’ objection.
III. 	CONCLUSION
For the reasons stated above, I overrule the objection of Defendants New Age Dome
Construction, LLC, and John Johnson to the inclusion of the Ohio Consumer Sales Protection Act
jury instruction. (Doc. No. 77).
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
Case: 3:21-cv-00865-JJH Doc #: 88 Filed: 03/11/26 6 of 6. PageID #: <pageID>