{¶ 1} Plaintiff-appellant, Darleena Wall, appeals from a summary judgment rendered in favor of defendant-appellee Planet Ford, Inc. Wall contends that the trial court erred in rendering summary judgment in favor of Planet Ford on her fraud claims and claims based on violations of the Ohio Consumer Sales Practices Act because a genuine issue of material fact exists, and Planet Ford is not entitled to summary judgment as a matter of law.
{¶ 2} Based on Wall’s deposition and the affidavits of Wall and Wall’s brother, we conclude that the trial court erred in rendering summary judgment in favor of Planet Ford on Wall’s CSPA claims, because there is a genuine issue of material fact whether Planet Ford promised to pay off the portion of Wall’s home equity loan that was used to finance the purchase of her 1997 Mercury Mountaineer, and Planet Ford was not entitled to summary judgment as a matter of law. Regarding Wall’s fraud claims, we conclude that the trial court did not err in rendering summary judgment in favor of Planet Ford, because the parol evidence rule is applicable and evidence of an alleged oral agreement at variance with the parties’ written agreement was properly excluded from consideration.
{¶ 3} Accordingly, the judgment of the trial court is affirmed with respect to Wall’s fraud claims but reversed with respect to Wall’s CSPA claims, and this cause is remanded for further proceedings consistent with this opinion.
I
{¶ 4} In 1998, Darleena Wall and her husband purchased a 1997 Mercury Mountaineer, financing the purchase through a home equity loan obtained from Day Air Credit Union. The terms for repayment under the loan were $282.56 a month. The Walls used their home as collateral for the home equity loan, and Day Air Credit Union did not receive a lien on the title to the Mountaineer.
{¶ 5} In January 2003, Wall and her brother, Mark Kocher, visited Planet Ford, Inc., on several occasions in search of a new vehicle for Wall. At the time, Wall and her husband were separated and in the process of divorce. The divorce was finalized in April 2003. Pursuant to the divorce decree, Wall retained the Mountaineer as her own, free and clear of any claims of her husband, and became solely responsible for the indebtedness owed on the Mountaineer.
{¶ 6} On February 1, 2003, Wall, accompanied by her brother, signed a lease for a new 2003 Ford Taurus station wagon with Planet Ford. The retail lease order, signed by Wall, included a trade-in allowance for the Mountaineer in the amount of $5,000, as well as a $3,000 rebate, which Wall assigned to Planet Ford. The retail lease order also contained an integration clause providing: “The front
{¶ 7} At the time of the transaction, Planet Ford advertised that it would pay off a loan “on” a vehicle if the customer wished to use it as a trade-in for purchasing a new vehicle. Wall averred, and testified at her deposition, that she repeatedly asked Planet Ford whether her home equity loan that she took out to purchase her Mountaineer would be paid off and that Planet Ford repeatedly assured her that it would be paid. Wall learned that Planet Ford failed to make any payment on her home equity loan.
{¶ 8} In May 2003, Wall filed a complaint against Planet Ford alleging claims based on fraud and violations of the Ohio Consumer Sales Practices Act (“CSPA”). Planet Ford filed an answer, with a counterclaim seeking an order to compel Wall to deliver the title to the Mountaineer to Planet Ford. Planet Ford then filed a motion for summary judgment, attaching the affidavit of Mitchell Gadd, Planet Ford’s operations director. Wall filed a response in opposition to Planet Ford’s motion for summary judgment, attaching the affidavits of Wall and her brother, Mark Kocher. A transcript of Wall’s deposition was also filed with the trial court.
{¶ 9} The trial court granted Planet Ford’s motion for summary judgment, concluding that based on the integration clause contained in the retail lease order, “it is clear that any issue with respect to Defendant’s alleged oral agreement to pay off Plaintiffs home equity loan is moot.” The trial court further found: “Defendant agreed to pay off the loan securing Plaintiffs motor vehicle. There was and is no loan securing Plaintiffs vehicle, and Defendant will not be required to pay off Plaintiffs home equity line of credit which is secured by real property in Ohio. This result, however, does not in any way vitiate Plaintiffs duty under the express terms of the lease contract to provide Defendant with proper title to the Mountaineer * * *.” From the summary judgment rendered in favor of Planet Ford, Wall appeals.
II
{¶ 10} Wall’s first assignment of error is as follows:
{¶ 12} Wall contends that the trial court erred in rendering summary judgment in favor of Planet Ford on her CSPA claims, because a genuine issue of material fact exists and Planet Ford is not entitled to summary judgment as a matter of law.
{¶ 13} We review the appropriateness of summary judgment de novo and follow the standards set forth in Civ.R. 56.
Koos v. Cent. Ohio Cellular, Inc.
(1994),
{¶ 14} Wall first contends that there is a genuine issue of material fact whether Planet Ford promised to pay off the portion of her home equity loan that was used to finance her purchase of her Mountaineer.
{¶ 15} In her affidavit, Wall averred that in January 2003, she went with her brother, Mark Kocher, to Planet Ford to look for a new vehicle. Wall stated that she talked to Marcus Thomas, a Planet Ford salesman, and asked him whether Planet Ford “could pay off’ her truck. Wall stated, “Thomas came back with a particular dollar amount and it looked good. I then told them my truck was on a home equity loan and that my then husband is on the loan also. I then asked the question, does my husband need to come and sign anything?” Wall averred, “The sales manager took my bank card and called my bank to check on my line of credit and the amount of the loan.” She averred that the sales manager later called her and told her that “he could work out a deal and also that they could pay off the loan” on her truck. Wall stated, “They did not say that they would pay off my Home Equity loans, just that they would pay off the truck loan. I kept asking is my loan going to be paid off. They said yes.”
{¶ 17} In support of its motion for summary judgment, Planet Ford submitted the affidavit of Mitchell Gadd, Planet Ford’s Operations Director, who averred, “At the time of the transaction, Planet Ford advertised that it would pay off the loan on the vehicle a customer desires to trade-in when purchasing a new vehicle.” Gadd stated, “Planet Ford did not advertise that it will pay off any of the customer’s loans or debts, especially a home equity loan, if the customer trades in a used vehicle for the purchase of new vehicle.” Gadd stated, “Planet Ford has no policy of paying off home equity loans and has never done so in the past.”
{¶ 18} Planet Ford argues that there is no genuine issue of material fact because Wall concedes that Planet Ford did not state that it would pay off her home equity loan. Although Wall did concede in her affidavit that Planet Ford did not state that it would pay off her home equity loan, just her truck loan, her statement could reasonably be interpreted to mean that Planet Ford would pay the portion of her home equity loan used to finance her purchase of her Mountaineer — not her entire home equity loan, but the part of the loan that was used to pay for her truck.
{¶ 19} Planet Ford argues that it advertised that it would pay off loans that are secured by a lien on a vehicle and, therefore, that Wall did not have a loan to pay off because Wall’s home equity loan was not secured by a lien on the Mountaineer. Planet Ford essentially argues that it did not represent to Wall that it would pay off the home equity loan she used to finance her purchase of her
{¶ 20} It appears that Planet Ford advertised only that it would pay off loans that are secured by a lien upon a vehicle. A jury might find it inherently unlikely that a ear dealer would agree to pay off that part of the unpaid balance of a home equity loan corresponding to the proceeds from the loan used to purchase a vehicle offered as a trade-in for a newly leased car, but that is an argument Planet Ford should make to a jury. The fact remains that Wall and her brother have averred, and Wall has testified at her deposition, that Wall told Planet Ford that her loan was a home equity loan and Planet Ford said that it would pay off her loan. Therefore, we conclude, based upon the affidavits of Wall and Kocher, and Wall’s deposition testimony, that there is a genuine issue of material fact whether Planet Ford promised to pay off the portion of Wall’s home equity loan that was used to finance her purchase of her Mountaineer.
{¶ 21} Wall further contends that Planet Ford is not entitled to judgment as a matter of law, because Planet Ford’s representations might violate R.C. 1345.02(A) and 1345.03(A) of the Ohio Consumer Sales Practices Act. R.C. 1345.02(A) prohibits a supplier from committing an unfair or deceptive act or practice in connection with a consumer transaction either before, during, or after the transaction. R.C. 1345.02(B) provides a list of representations made by the supplier that are considered to be deceptive, but it does not limit the scope of R.C. 1345.02(A). When claiming a violation of R.C. 1345.02(A), a consumer does not have to establish that the supplier intended to be unfair or deceptive.
Mannix v. DCB Service, Inc.,
Montgomery App. No. 19910,
{¶ 22} R.C. 1345.03(A) prohibits a supplier from committing an unconscionable act or practice in connection with a consumer transaction either before, during, or after the transaction. Although the CSPA does not define what constitutes an unconscionable act or practice, R.C. 1345.03(B) provides a list of circumstances to be considered in determining whether a supplier knowingly took unfair advantage of a consumer.
{¶ 24} Planet Ford contends that the integration clause in the retail lease order precludes Wall from alleging that a prior oral agreement existed and, therefore, that any oral representations made prior to the signing of the retad lease order are not a part of the agreement and are unenforceable. The integration clause in the retail lease order provides: “The front and back of the Document and any agreements attached hereto comprise the entire agreement affecting this Third Party Lease Agreement and no other agreement or understanding of any nature concerning the same has been made or entered into, or will be recognized.” Wall contends that although Planet Ford’s representations were made prior to her signing the retail lease order, which included an integration clause, the parol evidence rule does not apply to bar her CSPA claims. We agree.
{¶ 25} “Waiver, ratification, and other common law defenses do not apply to a claim under a law such as the Ohio Consumer Sales Practices Act because' the claim is based not on the contract, but on oral or other misrepresentations. For the same reason, the statute of frauds, the parol evidence rule, contractual limitations on liability, and contractual limitations on remedies do not apply.”
Doody v. Worthington,
Franklin Cty. M.C. No. M 9011CVI-37581,
{¶ 26} Under her CSPA claims, Wall is not attempting to enforce the oral representations made by Planet Ford as part of her contract, but is claiming that Planet Ford’s representations amounted to an unfair, deceptive, and unconscionable act in connection with a consumer transaction, in violation of the CSPA. The parol evidence rule is irrelevant in this sense.
{¶ 27} We conclude that the trial court erred in rendering summary judgment in favor of Planet Ford on Wall’s CSPA claims, because a genuine issue of
{¶ 28} Wall’s first assignment of error is sustained.
Ill
{¶ 29} Wall’s second assignment of error is as follows:
{¶ 30} “The trial court erred to Ms. Wall’s prejudice when it sustained appellee’s motion for summary judgment on Ms. Wall’s claims against appellee for fraud and/or intentional misrepresentation.”
{¶ 31} Wall contends that the trial court erred in rendering summary judgment in favor of Planet Ford on her fraud claims, because a genuine issue of material fact exists, and Planet Ford is not entitled to summary judgment as a matter of law. Planet Ford contends that the trial court properly rendered summary judgment in its favor because the integration clause in the retail lease order precludes Wall from using an assertion of a prior oral agreement to vary the terms of the parties’ written contract, and any oral agreement made prior to the retail lease order is not a part of the agreement and is unenforceable. Planet Ford contends that the parol evidence rule prohibits Wall from using extrinsic evidence to demonstrate a prior oral agreement at variance with the terms of the written contract containing the integration clause. Wall contends that the parol evidence rule is inapplicable because the parol evidence rule does not prohibit using extrinsic evidence for the purpose of proving fraudulent inducement.
{¶ 32} The pivotal issue is whether Wall’s fraud claims are barred by the parol evidence rule. In
Galmish v. Cicchini
(2000),
{¶ 34} “However, the parol evidence rule may not be avoided ‘by a fraudulent inducement claim which alleges that the inducement to sign the writing was a promise, the terms of which are directly contradicted by the signed writing. Accordingly, an oral agreement cannot be enforced in preference to a signed writing which pertains to exactly the same subject matter, yet has different terms.’
Marion Prod. Credit Assn. v. Cochran
(1988),
{¶ 35} An example of a proper claim of fraudulent inducement that would not run afoul of the parole evidence rule would be a situation in which a pest
{¶ 36} In this case, Wall contends that Planet Ford’s oral representations fraudulently induced her into signing the retail lease order. However, her fraudulent-inducement claim rests upon allegations that the inducement to sign the retail lease order was a promise the terms of which are directly at variance with the retail lease order. Wall contends that part of the agreement in leasing the Ford Taurus was that Planet Ford would pay the portion of her home equity loan used to finance her purchase of her Mountaineer. However, the written agreement leasing the Ford Taurus, the retail lease order, makes no mention of paying off the portion of Wall’s home equity loan used to purchase the Mountaineer, showing only that a $5,000 trade-in allowance would be given for the Mountaineer. Wall’s contentions are directly at variance with the retail lease order. We cannot enforce the oral agreement, as alleged by Wall, in preference to the signed writing, the retail lease order, which pertains to exactly the same subject matter yet has different terms. See Galmish, supra.
{¶ 37} We conclude that the parol evidence rule does apply to Wall’s fraud claims and that evidence of the alleged oral agreement was properly excluded from consideration with respect to Wall’s fraud claims. Therefore, we conclude that the trial court did not err in rendering summary judgment in favor of Planet Ford on Wall’s fraud claims.
{¶ 38} Wall’s second assignment of error is overruled.
IV
{¶ 39} Wall’s first assignment of error having been sustained, and her second assignment of error having been overruled, the judgment of the trial court is affirmed with respect to Wall’s fraud claims, the judgment is reversed with respect to Wall’s CSPA claims, and this cause is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.