','.".' I.' \ ':" \ INt'FIt: ~ tj&i~i~~l'tourt OF DAYTON, OHIO. This matter came before the Court on February 8, 2013 for a hearing on Plaintiff's

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1 ','.".' I.' \ ':" \ INt'FIt: ~ tj&i~i~~l'tourt OF DAYTON, OHIO 1Gnf 2 2 4iyI~ IUWISION 1'\\ DAVID ESRATI,,- \1' h CASE NO: 12-CVI-7529 Plaintiff, \>-1 Ah:-" I",. ~ I C, l r. \\1\ Vs. JESSICA HARTMAN Defendant. MAGISTRATE'S DECISION AND ENTRY This matter came before the Court on February 8, 2013 for a hearing on Plaintiff's small claims complaint for money damages. The Plaintiff appeared unrepresented by counsel and presented testimony as well as documentary evidence. The Defendant likewise appeared without counsel and presented evidence to the court, both written and oral. After careful consideration and review of the testimony, documentary evidence, and the applicable law, the Court has now reached a decision. The Plaintiff has requested a judgment in the amount of $ for the completion of a promotional video and banners. The Plaintiff and the Defendant entered into an agreement for the creation of these products. Neither party supplied the court with a signed contract but both had an identical invoice for services. The invoice stated a total of $ was to be due for video production, printing and design of banners and an URL registration. The Defendant produced evidence of her constant contact with employees of the Plaintiff. She had several s regarding her order and agreed upon deadline which she submitted into evidence. The parties agreed, via a mutual understanding, the project was to be completed by October 24,2012.

2 The Defendant paid the Plaintiff $ on October 4, The money represented the initial payment which was due prior to work beginning on her project. She was to pay an additional $500 upon completion of her order. During the course of their dealings several changes and adjustments were made to the Defendant's custom order. The Plaintiff was to create a custom video and banners for the Defendant's business. She intended to have all of the materials for a specific business event. Upon a breakdown of communication between the parties, the Defendant did not pick up the video which was produced. The banners were neither picked up nor produced but the design and layout was completed by the Plaintiff. The Defendant subsequently had another company do the layout and printing of her banners and incurred an additional expense. The Defendant contacted her credit card company and had a dispute initiated to receive a refund for the amount of her deposit paid to Plaintiff. To date she has been returned the money and the credit card company does not intend to recredit the amount in dispute, as both parties have informed the court. The credit card company has ended its involvement in the matter. The Plaintiff has shown a valid contract existed between the parties. Work was performed by the Plaintiff in performance of the contract and the Plaintiff has satisfied his burden to the Court to prove his claim. Plaintiff is therefore entitled to a judgment. However, due to the Plaintiffs inability to timely and accurately complete all of the work requested his award is reduced from the original contract amount.

3 Defendant was not timely provided the banners she requested, although work was begun to produce them. The Court has determined the Defendant is not obligated to pay for the banners or the URL which were not produced. The Plaintiff s award will therefore be offset by the amount of $ from the original contract price. The court is not inclined to grant any additional offset for the amount the Defendant paid to have her banners printed by another company because she did not allow the Plaintiff to mitigate or cure its breach. It was at that point in the business relationship the parties were unable to communicate and come to any amicable agreement. Therefore the Court orders Judgment for the Plaintiff in the amount of $ as the contracted value for the video and the design of the banners, plus 3% statutory interest and court costs. Additionally upon full satisfaction of this judgment the video and CD files currently in the custody of the court shall be released to the Defendant, they are Plaintiffs exhibits 9-1 and 9-2. SO ORDERED. ~ M~~&~~ JUDGEMENT ENTRY THE COURT HAS INDEPENDENTLY REVIEWED AND HEREBY ADOPTS THE MAGISTRATE'S DECISION AND A WARDS DAMAGES IN THE AMOUNT DETERMINED BY THE M TRA TE: Judg A party shall not assign as error on appea the court's adoption of any factual finding or legal conclusion in the Magistrate' Decision, whether or not specifically designated as a Finding of Fact or Conclusion of Law, unless the party timely and

4 specifically objects in writing to that factual finding or legal conclusion within fourteen (14) days of the filing of the Decision, as required by Civil Rule 53 D)(3)(b). Cc: David Esrati, The Next Wave 100 Bonner Street Dayton, OH Jessica Hartman, Dba Totally Polished, Defendant 4016 Meadowcroft Rd. Kettering, OH 45429

5 Small Claims Division, Dayton-Montgomery County Courts Building 301 W. Third St., Dayton, Ohio David Esrati Dba The Next Wave - vs- Plaintiff Case No: 2012-CVI Jessica Hartman Dba Totally Polished Spa Defendant Certificate of Mailing The undersigned deputy clerk of the Dayton Municipal Court hereby certifies that the attached document was served today on David Esrati Dba The Next Wave by ordinary mail, by depositing a copy of the same in the United States mail, postage prepaid, addressed to said person(s) at hislher/their address of record with the Court. Date of mailing: February 22, 2013 MARK E. OWENS Clerk, Dayton Municipal Court By K Folkerth, Deputy Clerk TO: David Esrati Dba The Next Wave 100 Bonner St Dayton, OH 45410