772 N.E.2d 712 | Ohio Ct. App. | 2002
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *232 This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellants Rolling Acres, Dodge, Inc. ("Rolling Acres") and DaimlerChrysler Corporation ("Chrysler") appeal the decision of the Summit County Court of Common Pleas. This Court affirms.
{¶ 3} Pearn went to Rolling Acres in November of 1997 intending to purchase a Dodge truck. When financing could not be obtained for the truck she wanted, Craig Theiss, a salesman at Rolling Acres, showed Pearn other vehicles, including the Sebring. Theiss told Pearn that the vehicle was a demo and that she would be its first owner. Theiss did not tell Pearn that the Sebring was a buyback, nor did he tell her that the vehicle had a special extended warranty from Chrysler because it was a buyback. Theiss had Pearn sign some preliminary paperwork, and then he took her to the finance department where Dominick Macreno had her sign the remaining paperwork to complete the transaction.
{¶ 4} Pearn began having trouble with the brakes in the fall of 1998. After taking the Sebring in for several repairs on the brakes, Pearn decided to trade in the vehicle. On September 13, 1998, Pearn went to Falls Dodge to look at vehicles for which she could trade in the Sebring. When a salesman at Falls Dodge ran the Sebring's vehicle identification number through the computer, he discovered it was a buyback vehicle. Mr. Holmes, a manager at Falls Dodge, then informed Pearn that the vehicle was a buyback.
{¶ 5} Pearn then brought this action against Rolling Acres and Chrysler alleging the following against each defendant: (1) violations of the Consumer Sales Practices Act; (2) breach of warranty; and (3) fraud. Pearn also sought punitive damages.
{¶ 6} The case was tried to a jury. At the close of Pearn's case, both Rolling Acres and Chrysler moved for directed verdict. The trial court denied both motions for directed verdict. The jury found: (1) for Pearn against Rolling Acres for $6,900 for Consumer Sales Practices Act violations; (2) for Pearn against Rolling Acres in the amount of $2,000 for breach of warranty; (3) for Pearn against Rolling Acres for $13,000 for fraud and $75,000 for punitive damages; (4) for Pearn against Chrysler for $16,100 for Consumer Sales Practices Act violations; (5) for Chrysler for breach of warranty; (6) for Pearn against Chrysler for $9,200 for fraud and $150,000 for punitive damages.
{¶ 7} On December 27, 2000, the trial court entered judgment based upon the jury's verdict, but ruled that the matter was not final until a determination was made as to attorneys fees awarded by the jury. On July 7, 2001, the trial court found that both Rolling Acres and Chrysler were liable for $224,250 in attorneys fees and $876 in costs. The trial court further found that Rolling Acres was only responsible for twenty-five percent of such fees and costs. *234
{¶ 8} On June 21, 2001, Rolling Acres moved for a new trial and partial judgment notwithstanding the verdict on the issue of punitive damages. On July 6, 2001, Rolling Acres moved for relief from judgment based on newly discovered evidence and fraud. The trial court denied Rolling Acres' motion for new trial and partial judgment notwithstanding the verdict on July 16, 2001. On July 24, 2001, Rolling Acres requested a hearing on its previously filed motion for relief from judgment. The trial court denied both Rolling Acres' request for hearing and motion for relief from judgment on August 8, 2001.
{¶ 9} Both Rolling Acres and Chrysler timely appealed. This Court will begin with Rolling Acres' assignments of error. Rolling Acres has set forth five assignments of error for review.
{¶ 11} Rolling Acres has argued that the trial court erred in admitting the testimony of Pearn's expert, David Stivers ("Stivers"). Specifically, Rolling Acres has argued that Stivers' testimony should have been excluded under either Evid.R. 403(A) or 702(A) or both.
{¶ 12} The decision of whether or not to admit evidence rests in the sound discretion of the court and will not be disturbed absent an abuse of that discretion. Wightman v. Consol. Rail Corp. (1999),
{¶ 13} The purpose of expert testimony is to "assist the trier of fact in determining a fact issue or understanding the evidence." Millerv. Bike Athletic Co. (1998),
{¶ 14} Rolling Acres has argued that, even if Stivers' testimony was admissible as being relevant, it was highly prejudicial to Rolling Acres, and was therefore, inadmissible under Evid.R. 403(A). Evid.R. 403(A) states: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
{¶ 15} Stivers testified that it is difficult for a car dealer to sell a buyback vehicle if they disclose to the consumer that it is a buyback vehicle. Stivers also testified that if a dealer finds a consumer that will purchase a vehicle after being told it is a buyback, the dealer won't be able to sell it for as much as if the consumer did not know it was a buyback. When questioned as to the value of a buyback vehicle with a history of serious brake problems that was not repairable after numerous attempts, Stivers stated that its value would be "essentially salvage value." Stivers testified that a dealer who chooses not to disclose the fact that a vehicle is a buyback can benefit by getting the consumer to pay more for the vehicle than if he or she knew they were purchasing a buyback vehicle. Finally, Stivers revealed several tactics known as the "five-finger disclosure" used by car dealers to interfere with the consumer's ability to read the paperwork he or she is signing. With the exception of his testimony regarding the value of a buyback vehicle with a history of serious brake problems that was not repairable after numerous attempts, Stivers' testimony was not beyond the knowledge or experience of the jury.
{¶ 16} Assuming without deciding that portions of Stivers' testimony were inadmissible as being within the knowledge of the jury, this Court finds that the error is harmless. There was sufficient evidence on which the jury could reach its verdict without Stivers' testimony. Accordingly, this Court concludes that the any statements made by Stivers that were within the jury's knowledge were harmless as no prejudicial evidence was obtained thereby.
{¶ 17} Rolling Acres' first assignment of error is overruled.
{¶ 19} Rolling Acres has argued that the trial court should have granted its partial motion for judgment not withstanding the verdict. This Court disagrees.
{¶ 20} This Court's standard of review on a motion for judgment notwithstanding the verdict, pursuant to Civ.R. 50(B), is de novo.Schafer v. RMS Realty (2000),
{¶ 21} Rolling acres moved the trial court for partial judgment notwithstanding the verdict from the jury's award of punitive damages. Rolling Acres has argued that the evidence did not support an award of punitive damages. This Court disagrees.
{¶ 22} R.C.
{¶ 23} In this case, the actions of Rolling Acres demonstrate egregious fraud. Rolling Acres sold the Sebring to Pearn knowing that under R.C.
{¶ 24} In viewing the evidence in the light most favorable to Pearn, this Court finds that there was substantial evidence to support Pearn's side of the case, upon which reasonable minds could reach different conclusions. The jury believed Pearn. Rolling Acres' second assignment of error is overruled.
{¶ 26} In its third assignment of error, Rolling Acres has argued that the trial court erred when it denied its motion for new trial. This Court disagrees. *237
{¶ 27} Civ.R. 59 also allows a trial court to grant a new trial based on the following grounds:
{¶ 28} "Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial[.]" Civ.R. 59(A)(1).
{¶ 29} The decision to deny a motion for a new trial will not be disturbed absent an abuse of discretion. Brooks v. Wilson (1994),
{¶ 30} The trial court's refusal to allow counsel for Rolling Acres to withdraw.
{¶ 31} Rolling Acres has argued that the trial court abused its discretion by refusing to allow the substitution of counsel. This Court disagrees.
{¶ 32} Civ.R. 7(B) provides: "An application to the court for an order shall be by motion which, unless made during a hearing or a trial, shall be made in writing." A review of the record reveals that Attorney Dickerson never filed a motion to withdraw as counsel for Rolling Acres. Appellant has stated in its brief that an oral motion to withdraw as counsel was made and denied by the trial court. However, such a proceeding is not documented in the record. It is the appellant's duty to ensure that all relevant portions of the record are filed with this Court. App.R. 9(B). This Court notes that Attorney Ronald Towne filed a notice of appearance on behalf of Rolling Acres. However, this did not relieve Attorney Dickerson of her responsibilities.
{¶ 33} Rolling Acres' argument with regard to the withdrawal of counsel is without merit.
Rolling Acres' Financial Information Submitted To The Jury
{¶ 34} Rolling Acres has argued that it was error for the trial court to provide the jury with the net income from Rolling Acres for 1999 and the net worth of Rolling Acres for 2000.
{¶ 35} This Court notes that Rolling Acres has failed to set forth a single, legal authority to support its contentions that the trial court erred. As such, Rolling Acres has failed to provide citations to authorities supporting its brief and the standard of review applicable to its assignments of error as required by App.R. *238 16(A)(7) and Loc.R. 7(A)(6). Rolling Acres had the burden of affirmatively demonstrating error on appeal. See Angle v. W. Res. Mut.Ins. Co. (Sept. 16, 1998), 9th Dist. No. 2729-M; Frecska v. Frecska (Oct. 1, 1997), 9th Dist. No. 96CA0086. Moreover, "[i]f an argument exists that can support this assignment of error, it is not this court's duty to root it out." Cardone v. Cardone (May 6, 1998), 9th Dist. Nos. 18349 and 18673.
{¶ 36} Accordingly, Rolling Acres' third assignment of error is overruled.
{¶ 38} Rolling Acres has argued that the trial court erred when it denied its Civ.R. 60(B) motion for relief from judgment. This Court disagrees.
{¶ 39} An appellate court reviews a trial court's denial of a Civ.R. 60(B) motion for relief from judgment under an abuse of discretion standard. Strack v. Pelton (1994),
{¶ 40} To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate the following:
{¶ 41} "[T]he party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE Automatic Elec. v. ARCIndustries, Inc. (1976),
{¶ 42} If any of these three requirements is not satisfied, the trial court should deny the motion. Rose Chevrolet, Inc. v. Adams
(1988),
{¶ 43} The Civ.R. 60(B) motion was based on newly discovered evidence allegedly not available at trial. Rolling Acres further alleged that Richard's affidavit proved fraud on the part of Pearn. See Civ.R. 60(B)(2) and (3).
{¶ 44} Civ.R. 60(B)(2) provides that relief from judgment may be granted for newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Civ.R. 59(B). In order to prevail on a motion for relief from judgment based upon newly discovered evidence, the movant must show that the newly discovered evidence could not have been discovered by due diligence in time to move for a new trial. Civ.R. 60(B). This means that the movant has the burden of showing:
{¶ 45} "`* * * (1) that the evidence was actually "newly discovered"; that is, it must have been discovered subsequent to the trial; (2) that the movant exercised due diligence; and (3) that the evidence is material, not merely impeaching or cumulative, and that a new trial would probably produce a different result.'" (Citations omitted.)Holden v. Ohio Bur. of Motor Vehicles (1990),
{¶ 46} Civ.R. 60(B)(3) provides that relief from judgment may be granted if the trial court finds fraud on the part of an adverse party. Rolling Acres argued that Richard's affidavit shows that Pearn committed fraud. Pearn argued that Richard's testimony demonstrated nothing more than contradictory statements.
{¶ 47} In denying Rolling Acres motion for relief from judgment, the trial court found: (1) Rolling Acres failed to state what efforts it employed to find Richard, who had apparently lived at the same address in Akron for years and (2) Rolling Acres did not show that Richard's affidavit was not merely impeaching.
{¶ 48} Given the evidence before it, this decision by the trial court is not unreasonable or arbitrary. Thus, the trial court did not abuse its discretion.
{¶ 49} Rolling Acres' fourth assignment of error is overruled.
{¶ 51} Rolling Acres has argued that the trial court erred in denying its motion for relief from judgment without first conducting an evidentiary hearing. This Court disagrees.
{¶ 52} Under Civ.R. 60(B), the movant is entitled to an evidentiary hearing only where the motion and attached affidavits contain allegations of operative facts, which would warrant relief under Civ.R. 60(B). Salem v. Salem *240
(1988),
{¶ 53} In this case, the trial court had already determined that there was no basis for relief under Civ.R. 60(B). Since Rolling Acres did not present any operative facts, which would warrant relief, the trial court did not err in denying an evidentiary hearing. Therefore, Rolling Acres' fifth assignment of error is overruled.
{¶ 54} Chrysler has set forth two assignments of error for review.
{¶ 57} Chrysler's two assignments of error will be combined for discussion as they raise similar issues.
{¶ 58} In its first assignment of error, Chrysler has argued that the trial court erred in denying its motion for a directed verdict on all of Pearn's claims. Chrysler's second assignment of error is that the jury's finding of individual liability for fraud and violations of Ohio's Consumer Sales Practices Act against Chrysler was not based on sufficient evidence. This Court disagrees.
{¶ 59} This Court reviews a trial court's ruling on a motion for directed verdict de novo because it presents us with a question of law.Schafer v. RMS Realty (2000),
{¶ 60} Pursuant to Civ.R. 50(A)(4), a directed verdict is properly granted when "the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party[.]" Where there is substantial evidence upon which reasonable minds may reach different conclusions, *241
the motion must be denied. Posin v. A.B.C. Motor Court Hotel (1976),
{¶ 61} Chrysler's entire argument centers around whether there was an agency relationship between it and Rolling Acres. Chrysler has argued that R.C.
{¶ 62} Pearn has argued that R.C.
{¶ 63} "When called upon to construe a statute, we rely upon well-established rules of statutory construction to determine the legislative intent. To do so, we first look to the language of the statute and its purpose. We must give effect to the words used in the statute, not delete any words or insert words not used. In addition, R.C.
{¶ 64} "It is a fundamental rule in construing a statute that all parts of it must be construed together and any apparent contradictions reconciled, if possible." Blackwell v. Bowman (1948),
{¶ 65} The resale of a buyback vehicle is regulated by R.C.
{¶ 66} "(A) A buyback may not be resold or leased in this state unless each of the following applies:
{¶ 67} "(1) The manufacturer provides the same express warranty that was provided to the original consumer, except that the term of the warranty shall be the greater of either of the following: *242
{¶ 68} "(a) Twelve thousand miles or twelve months after the date of resale, whichever is earlier;
{¶ 69} "(b) The remaining term of any manufacturer's original warranty.
{¶ 70} "(2) The manufacturer provides to the consumer, either directly or through its agent or its authorized dealer, and prior to obtaining the signature of the consumer on any document, a written statement on a separate piece of paper, in ten-point type, all capital letters, in substantially the following form:
{¶ 71} "WARNING: THIS VEHICLE PREVIOUSLY WAS SOLD AS NEW. IT WAS RETURNED TO THE MANUFACTURER OR ITS AGENT IN EXCHANGE FOR A REPLACEMENT VEHICLE OR REFUND AS A RESULT OF THE FOLLOWING DEFECT(S) OR CONDITION(S):
{¶ 72} "1 ____________________________________________________
{¶ 73} "2 ____________________________________________________
{¶ 74} "3 ____________________________________________________
{¶ 75} "4 ____________________________________________________
{¶ 76} "5 ____________________________________________________
{¶ 77} " _____________________________________________________
{¶ 78} _____________ _________________________________ "DATE BUYER'S SIGNATURE
{¶ 79} "The manufacturer shall list each defect or condition on a separate line of the written statement provided to the consumer.
{¶ 80} "(B) Notwithstanding the provisions of division (A) of this section, if a new motor vehicle has been returned under the provisions of section
{¶ 81} R.C.
{¶ 82} R.C.
{¶ 83} When read in pari materia, it is clear that it was the intent of the legislature that a vehicle containing the type of defect that was present in the Sebring in this case not be brought into Ohio. Given the language of R.C.
{¶ 84} Chrysler's two assignments of error are therefore, overruled.
{¶ 85} The decision of the Summit County Court of Common Pleas is affirmed.
BATCHELDER, J. CONCURS.
Dissenting Opinion
{¶ 86} While I concur in the balance of the majority opinion, I respectfully dissent from the majority's opinion regarding Chrysler's assignments of error one and two. The majority finds that Chrysler had a nondelegable duty to ensure that a vehicle, which contained "a nonconformity likely to cause death or serious *244
bodily injury if the vehicle is driven[,]" was not sold in Ohio. The majority further stated that it violated R.C.
{¶ 87} Relying on R.C.
{¶ 88} R.C.
{¶ 89} Initially, it should be noted that the statutory language of R.C.
{¶ 90} The Supreme Court of Ohio has held that "[t]he relationship of principal and agent * * * exists only when one party exercises theright of control over the actions of another, and those actions are directed toward the attainment of an objective which the former seeks." (Emphasis added.) Hanson v. Kynast (1986),
{¶ 91} Additionally, the majority states in footnote one that Chrysler's bill of sale to Rolling Acres contained the notation: "NO SALE TO OH * * * DEALERS" and this notation indicates that Chrysler knew and understood R.C.
{¶ 92} For the foregoing reasons, I would reverse the decision of the lower court as it relates to Chrysler. *246