521 N.E.2d 1142 | Ohio Ct. App. | 1987
Appellants, James T. and Gretchen Cypher, entered into a "New Vehicle Lease Agreement" with appellee, Bill Swad Leasing Company ("Swad"), for a new 1982 Cadillac on or about October 15, 1982. Mrs. Cypher asserts that at the time of purchase, Swad represented that the car was new, in good condition and had only been used as a company demonstrator. Mrs. Cypher used the car primarily for business from October 1982 through August 1983 and, thereafter, used it for personal purposes. In 1985, Mrs. Cypher discovered that her vehicle had previously been badly damaged in an automobile accident and also discovered that it had had nine previous owners. The Cyphers filed this suit in the Franklin County Court of Common Pleas on August 30, 1985. Appellants made the prescribed monthly payments from the inception of the lease until April 1986. Because the appellants ceased making the monthly lease payments prior to the end of the lease term, the appellees filed a counterclaim alleging that appellants were in default under the terms of the lease.
Swad filed a motion to dismiss the portion of the complaint that asserted violations of the Consumer Sales Practices Act since appellants had failed to file their claim within the two-year statute of limitations as set forth in R.C.
Appellants assert the following statement of the issues:
"I. Whether the Court of Common Pleas of Franklin County, Ohio, committed legal error by dismissing that portion of Appellants' claim brought under the Consumer Sales Practices Act, Section
"II. Whether the Court of Common Pleas of Franklin County, Ohio, committed legal error by granting Appellee's Motion for Summary Judgment against Appellants on the issue of liability only."
Appellants assert in their first statement of the issues that their claim is not barred by R.C.
"An action under sections
Appellants submit that the language of R.C.
The interpretation of statutory language should be given its plain and ordinary meaning. American Chemical Soc. v. Kinney
(1980),
"In any action for rescission, revocation of the consumer transaction must occur within a reasonable time after theconsumer discovers or should have discovered the ground for it and before any substantial change in condition of the subject of the consumer transaction." (Emphasis added.)
The language of R.C.
"Where the violation was an act prohibited by section
Likewise, R.C.
"Where the violation was an act or practice declared to be deceptive or unconscionable * * *, 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.)
In reading R.C.
Summary judgment, Civ. R. 56, is a procedural device designed to terminate litigation and to avoid a formal trial where there are no factual disputes to be resolved. It must be awarded with caution, resolving all doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. SeeNorris v. Ohio Std. Oil Co. (1982),
In the facts before this court there *203
is no genuine of any material fact as to whether R.C.
Therefore, the trial court did not err when it granted Swad's motion for summary judgment on the basis that it was time-barred pursuant to R.C.
Appellants assert in their second statement of the issues that the court of common pleas erred by granting summary judgment in favor of Swad based on its counterclaim on the issue of liability only. Appellants assert that the "New Lease" agreement which they entered into with Swad was obtained by fraud. Appellants allege that Swad represented the car to be new but that they later discovered there were nine previous owners and that the car had been previously damaged in a wreck. If appellants meet their burden of proof in determining that these allegations are true, they will not be obligated to comply with the terms of the "New Lease" agreement which is the basis of Swad's counterclaim. SeeRailroad Co. v. Steinfeld (1884),
Swad contends that even if there is a genuine issue as to a material fact in regard to liability based on its counterclaim, appellants waived the affirmative defense of fraud. Civ. R. 12(H) states:
"(H) Waiver of defenses and objections.
"(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in subdivision (G), or (b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(A) to be made as a matter of course."
Civ. R. 12(H) specifically establishes those defenses subject to waiver when not made by motion under the Civil Rules or included in a responsive pleading or amendment, as permitted by Civ. R. 15(A). The defense of fraud is not listed as a waivable defense under this rule. Furthermore, in reviewing the amended complaint, appellants not only sought treble damages, but also rescission and a suit based on fraud. See paragraph eighteen, amended complaint. Thus, the seventh cause of action in appellants' amended complaint satisfies the requirement of pleading fraud. See Civ. R. 9(B). Therefore, Swad's contention that appellants' affirmative defense of fraud is not properly before this court is without merit. While the discovery principle has not been judicially applied to deceptive sales practices, where the prayer is for treble damages, an appellant, nevertheless, is not precluded from seeking a rescission of the contract after discovery, so long as it is sought within a reasonable time. R.C.
The limitation of time to seek relief on the basis of fraud would be four years pursuant to R.C.
The limitation of time to seek relief on the basis of a written contract *204
would be fifteen years pursuant to R.C.
Thus, the trial court erred in granting summary judgment on the issue of liability, dismissing all actions brought by the appellants against Swad inasmuch as the time limitation for an action for rescission, R.C.
The appellants' second statement of issue is well-taken and sustained. This matter is remanded to the trial court to determine the rights of the parties in regard to appellants' prayer for rescission, damages based upon an action in fraud and damages based upon the allegations that Swad failed to perform the written contract.
The judgment of the Franklin County Court of Common Pleas is reversed and the cause is remanded for further proceedings in accordance with law consistent with this opinion.
Judgment reversed and cause remanded.
REILLY and BOWMAN, JJ., concur.