2006 Ohio 4701 | Ohio Ct. App. | 2006
¶ 3} Appellant liked the car, and the parties agreed to draw up the lease agreement. While appellant met with the finance and service manager, appellee Sarah J. Stack, Phillips reviewed the Monte Carlo owner's manual with salesman Scott DeMatteis, and the two took the Monte Carlo to a nearby gas station to fill the gas tank. During this time, appellant discussed the lease agreement with Stack. Phillips had indicated that he did not want any "extras" with the lease, and appellant reiterated that sentiment to Stack. Stack prepared the lease agreement (lease #1), which included a theft insurance option called Etchguard. The monthly payments under lease #1 were $330.23 per month. Upon his return from the gas station, Phillips informed Stack that he did not want the Etchguard option. Stack told Phillips that the cost for Etchguard was included in the lease price, but that if he didn't want the option, "that was fine." Appellant nonetheless signed lease #1, and she and Phillips drove the vehicle home. As they were leaving the dealership Phillips asked DeMatteis about the Etchguard product, and was told by DeMatteis "don't worry about it, it's only a few bucks a month."
¶ 4} Appellant and Phillips thought about the Etchguard option over the weekend, and Phillips called the dealership the following Monday to inquire about the cost for the option. Phillips became upset when he was told that the total cost of the option was $389.00, and spoke with appellee Kevin Spitzer on Tuesday. Spitzer drew up a new lease agreement (lease #2) that did not include the Etchguard option in an effort to satisfy Phillips. The monthly payment under lease #2 was $320.00 per month. Phillips picked up lease #2 from the dealership, took it home for appellant to sign, and returned it to the dealership. Lease #1 was never processed to Provident, the auto lease financing company, and appellant made no payments under lease #1. Appellant made all monthly payments in accordance with lease #2.
¶ 5} On February 2, 2005, appellant filed a complaint in the Stark County Court of Common Pleas against the appellees in which she alleged fraud and breach of contract relative to lease #1, and prayed for $500,000.00 in compensatory damages and $500,000.00 in punitive damages. Appellees filed a motion to dismiss, which the trial court denied. Thereafter, appellees filed a motion for summary judgment, which the trial court granted.
¶ 6} Appellant appeals the decision of the trial court granting appellees' motion for summary judgment, and sets forth the following assignment of error:
¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT."
¶ 8} This case comes to us on the accelerated calendar. App. R. 11.1, which governs accelerated calendar cases, provides in pertinent part: "(E) Determination and judgment on appeal. The appeal will be determined as provided by App. R. 11.1. It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form."
¶ 9} This appeal shall be considered in accordance with the aforementioned rule.
¶ 10} In her sole assignment of error, appellant claims that the trial court erred and abused its discretion when it granted appellees' motion for summary judgment. We disagree.
¶ 11} The standard of review in cases involving summary judgment is not, as intimated by appellant, abuse of discretion, but rather, de novo. Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. TheWedding Party, Inc. (1987),
¶ 12} "Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial." Vahila v. Hall,
¶ 13} It is pursuant to this standard that we review appellant's assignment of error.
¶ 14} The Ohio Supreme Court set forth the elements of fraud in the case of Russ v. TRW, Inc (1991),
¶ 15} "A claim of common-law fraud requires proof of the following elements: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Burrv. Stark Cty. Bd. of Commrs. (1986),
¶ 16} This court set forth the elements of breach of contract in the case of Moore v. Daw (Dec. 2, 2000), 5th Dist. Nos. CT-2000-0014 and CT-2000-0017, appeal not allowed, (2001),
¶ 17} "The elements of a breach of contract claim are summarized as follows: `[A] breach of contract occurs when a party demonstrates the existence of a binding contract or agreement; the nonbreaching party performed its contractual obligations; the other party failed to fulfill its contractual obligations without legal excuse; and the nonbreaching party suffered damages as a result of the breach.' Garofalo v. ChicagoTitle Ins. Co. (1995),
¶ 18} Both causes of action require proof of damages. The appellant failed to set forth specific evidence of the type listed in Rule 56(C) which demonstrated that a genuine issue of material fact existed with regard to whether she suffered damages. Phillips testified on deposition that no economic damages were suffered as a result of the appellees' alleged fraud and alleged breach of contract. Phillips testified further on deposition that he went to the dealership to retrieve the second lease, took it home for appellant to sign, and returned it to the dealership. Appellant submitted an affidavit in her brief in opposition to appellees' motion for summary judgment in which she stated that her damages were that an extra trip had to be made to the dealership in order to sign lease #2, and that in order to sign lease #2 she was required to take time away from her employment. This argument, however, is flawed. First, Phillips testified that it was he, and not appellant, who drove to the dealership to retrieve lease #2. This fact is uncontroverted. Phillips is not a party herein. Second, appellant provided no documentation as required by Rule 56(C) regarding the alleged time away from her employment. Third, as the trial court correctly pointed out, the appellant cannot submit an affidavit that is in conflict with prior sworn testimony in order to create a question of fact. See, generally, Zanesville Truck Center Ltd.v. Burech Crow, Muskingum App. No. CT2004-0002,
¶ 19} It is axiomatic that failure to prove one element of a cause of action is fatal to a party's claim. As stated by this Court in the case of Carroll v. Stebelton (May 13, 1996), 5th Dist. No. 95CA0059, dismissed, appeal not allowed, (1996),
¶ 20} Appellant's sole assignment of error is overruled, and the decision of the Stark County Court of Common Pleas is hereby affirmed.
By: Edwards, J. Wise, P.J. and Gwin, J. concur.
