674 N.E.2d 779 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *506 On May 17, 1995, Charles M. Crye filed a complaint in the Franklin County Municipal Court against Gerald Smolak, d.b.a. Jerry's Automatic Transmission ("Jerry's"). The complaint included allegations that Smolak committed various violations of the Consumer Sales Practices Act ("CSPA") in connection with a transaction involving the repair of Crye's motor vehicle. Ultimately, a nonjury trial was held.
At the conclusion of the trial, the trial court stated its decision, which included findings of various violations of R.C. Chapter 1345 and related, substantive rules. The trial court also found Crye was entitled to attorney fees. Pursuant to Smolak's request, the trial court filed written findings of facts and conclusions of law. The trial court found Smolak knowingly violated three CSPA substantive rules and failed to timely perform the repair. The trial court awarded Crye $200 *507 for each rule violation, $136 in actual damages for the untimeliness, which was trebled to $408, and $2,700 for attorney's fees. Smolak, d.b.a. Jerry's Automatic Transmission ("appellant"), has timely appealed from the trial court's judgment entry in favor of Crye ("appellee"), assigning three errors for our consideration:
"1. The court erred in finding that the Appellant committed violations of the Consumer Sales Practices Act entitling the Appellee to damages.
"2. The court erred in finding that the Appellee suffered damages in the amount of $1008.00.
"3. The court erred in finding that Appellee was entitled to attorney fees in the amount of $2,700.00."
In his first assignment of error, appellant contends that the evidence and the law do not support the trial court's finding that he violated the CSPA. As to the sufficiency-of-the-evidence argument, the Supreme Court of Ohio held in C.E. Morris Co. v.Foley Constr. Co. (1978),
"Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence."
Pursuant to R.C.
The first violation the trial court found involved Ohio Adm. Code
"It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service upon a motor vehicle where the anticipated cost exceeds twenty-five dollars and there *508 has been face to face contact at the supplier's place of business during the hours such repairs or services are offered, between the consumer or his representative and the supplier or his representative, prior to the commencement of the repair or service for a supplier to:
"(1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, toprovide the consumer with a form which indicates the date, the identity of the supplier, the consumer's name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service. The form shall also clearly and conspicuously contain the following disclosures in substantially the following language:
"`ESTIMATE
"YOU HAVE THE RIGHT TO AN ESTIMATE IF THE EXPECTED COST OF REPAIRS OR SERVICES WILL BE MORE THAN TWENTY-FIVE DOLLARS. INITIAL YOUR CHOICE:
"___ written estimate
"___ oral estimate
"___ no estimate'." (Emphasis added.)
The trial court stated that appellant violated the above provisions by failing to "advise" appellee of his right to have a written estimate prior to the commencement of repairs. The trial court's use of the word "advise" is misleading, since Ohio Adm. Code
The trial court also found that appellant violated Ohio Adm. Code
"In any consumer transaction involving the performance of any repair or service upon a motor vehicle it shall be a deceptive act or practice for a supplier to:
"* * *
"(4) Fail to disclose prior to acceptance of any motorvehicle for inspection, repair, or service, that in the event the consumer authorizes commencement but *509 does not authorize completion of a repair or service, that a charge will be imposed for disassembly, reassembly, or partially completed work. * * *" (Emphasis added.)
Appellant contends that he did not violate this provision because the form appellee signed stated that in the event commencement of repairs is authorized but completion of repairs is not, a charge will be imposed for disassembly, reassembly or partially completed work. Appellant's argument must fail because although such was disclosed, it was not disclosed prior to accepting the motor vehicle for inspection.
As indicated above, appellee did not see the form until after appellant partially disassembled the engine to see what was wrong. Ohio Adm. Code
The trial court additionally found that appellant violated Ohio Adm. Code
"In any consumer transaction involving the performance of any repair or service upon a motor vehicle it shall be a deceptive act or practice for a supplier to:
"* * *
"(9) Represent that repairs have been made or services have been performed when such is not the fact."
The trial court found that appellant told appellee repairs had begun and had been partially completed when they, in fact, had not. The record indicates that appellee visited Jerry's often during the course of appellant's work on the car. Appellant's son, a mechanic at Jerry's, testified that appellee had "been in numerous times that week taking up all our time," so the son told appellee that the cylinder head had been sent out for repair when it had not been. This violates Ohio Adm. Code
In summary, there was sufficient competent, credible evidence supporting the trial court's finding as to each of the above three violations. We note that the *510 trial court also found appellant was untimely in the repair of appellee's car; however, this aspect will be discussed in the next assignment of error. Accordingly, appellant's first assignment of error is overruled.
In his second assignment of error, appellant contends that the trial court erred in awarding $1,008 in damages. As indicated above, the trial court awarded appellee $600, representing $200 for each rule violation, and $408, representing the trebled $136 for untimeliness. Appellant first contends that there was no evidence of damages due to untimeliness and points to the trial court's finding of fact No. 9 that appellee failed to mitigate his damages. We note that finding of fact No. 9 states that appellee failed to mitigate his damages after October 1994 by failing to request return of his vehicle. However, there was sufficient competent, credible evidence supporting the court's finding of $136 in damages prior to October 1994, specifically, costs of insurance in the sum of $137.50 and costs related to acquiring a replacement vehicle.
Appellant next contends that the trial court violated R.C.
"Where the violation was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B)(2) of section
The trial court found that appellant failed to perform the work in a timely manner. Untimeliness is not declared in any rule adopted under R.C.
Appellant also contends the trial court violated R.C.
The courts of Ohio are split on this issue; however, the majority of the courts have found that where there are separate rule violations caused by separate acts, the consumer is entitled to $200 per violation. See Keller v. Pride Chevrolet,Inc. (Oct. 12, 1988) Summit App. No. 13536, unreported, 1988 WL 107009; Gadfield v. Ferris Chevrolet, Inc. (June 26, 1990), Tuscarawas App. No. 89AP090072, unreported, 1990 WL 94043;Calderone v. Jim's Body Shop (1991),
In an unreported case from this court, we allowed recovery of only $200 when there were no actual damages and there were two separate acts that violated two separate rules. See Cummins v.Dave Fillmore Car Co., Inc. (Oct. 27, 1987), Franklin App. No. 87AP2-71, unreported, 1987 WL 19186. However, the express issue presented here was not the subject of an assignment of error. A few courts have made similar findings which limited recovery to $200. See Eckman v. Columbia Oldsmobile, Inc. (1989),
We disagree with the dicta in the unreported case from our court, Cummins, supra. The CSPA is a remedial law designed to compensate for traditional consumer remedies and, thus, must be liberally construed. Einhorn v. Ford Motor Co. (1990),
R.C.
"For a violation of Chapter 1345. of the Revised Code, a consumer has a cause of action and is entitled to relief as follows:
"* * *
"(B) Where the violation was an act or practice to be deceptive or unconscionable by rule * * * the consumer may rescind the transaction or recover * * * three times the amount of his actual damages or two hundred dollars, whichever is greater * * *." (Emphasis added.)
Ohio Adm. Code
Applying this rationale to the case herein, we find that appellant engaged in three separate acts that violated three different and distinct rules. In addition, appellant engaged in untimely and unworkmanlike behavior that prior publicized court decisions found was a deceptive or unconscionable practice. Thus, appellee was entitled to his actual damages for each violation, if any, or $200 for each violation. Accordingly, the trial court did not err in awarding appellee $408 for his actual damages, trebled, for untimeliness, and $200 for each of the three rule violations, as he had no actual damages due to them.
For the foregoing reasons, appellant's second assignment of error is overruled. *513
In his third and final assignment of error, appellant contends that the trial court erred in awarding appellee attorney fees of $2,700. Specifically, appellant contends the contract between appellee and his attorney did not contain an agreed fee, and there was insufficient evidence to show the fees were reasonable. R.C.
"The court may award to the prevailing party a reasonable attorney's fees limited to the work reasonable performed, if either of the following apply:
"* * *
"(2) The supplier has knowingly committed an act or practice that violates this chapter."
The Supreme Court of Ohio, in Bittner v. Tri-County Toyota,Inc. (1991),
"When awarding reasonable attorney fees pursuant to R.C.
The Supreme Court also noted that the trial court's determination of attorney fees is not to be disturbed absent an abuse of discretion. Id. at 146,
Here, appellee and his attorney contracted that the attorney fee would be either one third the amount of recovery or $150 per hour, whichever was greater. The trial court found that appellee's counsel spent eighteen hours on appellee's case and awarded appellee $2,700. Appellee's counsel testified at length about each charge. The trial court had before it sufficient evidence to determine a reasonable attorney fee for work reasonably performed. Hence, the trial court did not err in awarding appellee $2,700 for attorney fees pursuant to R.C.
Having overruled each of appellant's assignments of error, the judgment of the Franklin County Municipal Court is hereby affirmed.
Judgment affirmed.
DESHLER and LAZARUS, JJ., concur.