Averback v. Montrose Ford, Inc.
120 N.E.3d 125
Ohio Ct. App.2019Background
- Montrose Ford bought a new 2013 Ford F-150 whose factory long-block engine was defective; Ford provided a warranty replacement long block before Montrose sold the truck. Montrose replaced the engine at a retail cost of $5,800.
- In April 2013 Bruce Averback purchased the truck from Montrose for $73,901.65; Montrose did not disclose the prior engine replacement.
- Averback later learned of the prior engine replacement, filed suit alleging violations of Ohio's Consumer Sales Practices Act (CSPA) and related claims, and moved for partial summary judgment on liability for several CSPA theories.
- The trial court granted summary judgment to Averback on a single administrative-rule-based CSPA claim (Ohio Adm.Code 109:4-3-16(B)(14)) holding Montrose violated the disclosure duty; the parties tried only damages to the bench.
- The magistrate awarded treble economic damages, $500 noneconomic damages, attorney fees ($23,845) and costs; the trial court adopted those awards. On appeal the Ninth District affirmed liability but reversed and remanded as to economic damages, noneconomic damages, attorney fees, and recalculation of costs under the offer-to-cure statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Scope of O.A.C. 109:4-3-16(B)(14) — whether the 6% retail-repair-cost qualifier applies to "any defect" (including repaired defects) or only to "previous damage" | Averback: the rule requires disclosure of any defect (past or present) when retail repair cost exceeds 6% of MSRP; Montrose’s repaired-engine required disclosure | Montrose: the 6% qualifier applies only to "previous damage," and the rule does not require disclosure of cured/prior defects | Court: affirmed liability — the qualifier applies to the entire phrase "any defect and/or the extent of any previous damage," so repaired defects exceeding 6% must be disclosed |
| 2) Measure and sufficiency of damages — whether Averback proved actual/treble economic and noneconomic damages | Averback: sought reliance/out‑of‑pocket damages (down payment, negative equity) and noneconomic damages for emotional distress; argued those flowed from the nondisclosure | Montrose: rescission (and reliance damages) unavailable because Averback had already traded the truck; Averback failed to prove expectation damages, reliance damages, malicious/intentional conduct, or sufficient economic loss | Court: reversed awards — rescission/reliance damages unavailable (truck sold), Averback failed to prove actual economic damages or the requisite intent for noneconomic damages; remanded to award mandatory $200 statutory CSPA damages |
| 3) Attorney's fees and recoverable costs — whether Averback proved supplier "knowingly" violated CSPA and whether post-offer-to-cure fees/costs are barred | Averback: relied on evidence from summary judgment materials and trial court liability ruling to show Montrose knowingly violated CSPA | Montrose: no evidence at the damages hearing proving Montrose knew the factual basis of the violation; costs after offer to cure should be disallowed if recoverable damages fall below the cure amount | Court: reversed attorney's fees — Averback failed to present evidence at the damages hearing that Montrose acted knowingly; remanded to reduce recoverable court costs to those incurred before the cure-offer because recoverable economic award will be below the cure amount |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (summary judgment de novo standard)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (Civ.R. 56(C) summary judgment test)
- D.A.B.E., Inc. v. Toledo-Lucas County Board of Health, 96 Ohio St.3d 250 (2002) (statutory language must be construed to give effect to every word)
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (standard for sufficiency of evidence review)
- Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177 (2006) (noneconomic CSPA damages require evidence of intentional or malicious supplier conduct)
- Charvat v. Ryan, 116 Ohio St.3d 394 (2007) (award of attorney's fees under CSPA and "knowing" requirement)
- Einhorn v. Ford Motor Co., 48 Ohio St.3d 27 (1990) ("knowingly" requires only that supplier intentionally do the act giving rise to CSPA violation)