Lester v. FCA US, L.L.C. , 2022 Ohio 1776 ( 2022 )

[Cite as Lester v. FCA US, L.L.C., 2022-Ohio-1776.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DEREK LESTER, : APPEAL NOS. C-210532
C-210536
Plaintiff-Appellee/Cross- : TRIAL NO. A-1804511
Appellant,
:
vs. O P I N I O N.
:
FCA US LLC,
:
Defendant-Appellant/Cross-
Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: May 27, 2022
Scarlett M. Steuart and Elizabeth Ahern Wells, for Plaintiff-Appellee/Cross-
Appellant,
Sutter O’Connell and Kevin W. Kita, for Defendant-Appellant/Cross-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} This case arises out of allegations by plaintiff-appellee/cross-appellant
Derek Lester that his new Ram truck was defective and that defendant-
appellant/cross-appellee FCA US LLC (“FCA”) failed to diagnose and repair the defect
under warranty. Following a jury trial, the jury specifically found that Lester’s truck
had no defect that was covered under FCA’s written warranties and that FCA did not
breach the implied warranty of merchantability. Judgment was entered in favor of
FCA on Lester’s Lemon Law, Magnuson-Moss Warranty (“MMWA”), and breach-of-
warranty claims. The jury found in favor of Lester on his claim that FCA violated the
Consumer Sales Practices Act (“CSPA”), finding that FCA committed an unfair or
deceptive act in relation to Lester’s purchase of the truck. The trial court entered
judgment in favor of Lester on his CSPA claim, and awarded him damages and
attorney fees. Both parties appealed.
{¶2} We find no merit in Lester’s argument that the trial court erred by failing
to properly instruct the jury as to his burden of proof on his Lemon Law claim. In
addition, we hold that the trial court should have granted FCA’s motion for judgment
notwithstanding the verdict on Lester’s CSPA claim. We remand for the trial court to
enter judgment in favor of FCA on the CSPA claim and to vacate its awards of damages
and attorney fees. We affirm the trial court’s judgment in all other respects.
Factual and Procedural Background
{¶3} On November 14, 2016, Lester purchased a new 2016 Ram 1500 truck.
With his purchase of the vehicle, Lester received FCA’s three-year/36,000-mile Basic
Limited Warranty, in which FCA promised to cover “the cost of all parts and labor
needed to repair any item on [the] vehicle when it left the manufacturing plant that is
defective in material, workmanship, or factory preparation.” Tires are expressly not
covered under the warranty. Lester also received FCA’s five-year/100,000-mile
2
OHIO FIRST DISTRICT COURT OF APPEALS
Powertrain Warranty, in which FCA promised to cover repairs to only certain listed
powertrain components.
{¶4} Because Lester experienced an intermittent vibration in the truck when
driving at highway speeds, he had its tires checked at Firestone Complete Auto Care,
where he worked, the same day that he bought the truck. When Lester rebalanced the
tires, he noticed flat spots in them. He testified that the rebalancing did not fix the
vibration. He placed an order for new tires because he was “suspect of flat spots,” and
he preferred the thread design on the tires he ordered. The tires that he ordered were
not installed on the truck until January 4, 2017.
{¶5} On November 26, Lester took the truck to Northgate Chrysler, reporting
that the truck vibrated at 65 m.p.h. A technician determined that the tires were not in
balance and rebalanced them. Lester returned to Northgate on November 29, with the
same complaint about vibration. Northgate technicians attempted to balance the tires
again but were unable to do so and recommended that Lester replace the tires. Lester
returned to Northgate on November 30, and requested that the technicians swap tires
from a new truck to test drive it. The technicians test drove the truck with tires
swapped from a new vehicle, and reported that “no vibration was felt” with those tires.
They put Lester’s original tires back on his truck and balanced them. Lester went back
to Northgate on December 2, but was told they could do nothing more for him.
{¶6} On December 6, Lester took his truck to a second dealership, Kings
Chrysler, reporting that he felt vibration above 60 m.p.h. A technician test drove the
truck and found that it “would shake violently” above 60 m.p.h. The technicians
swapped tires with a new truck on the dealership lot and determined that the vibration
“diminished considerably.” They put Lester’s tires back on his truck and
recommended that he purchase new tires. Lester returned to Kings on December 16,
and technicians determined that the truck’s rear wheels were “out of round,” and
replaced them.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} On January 4, 2017, Lester replaced the original Goodyear tires with
new Firestone tires (that he ordered on the day he bought the truck). Still not satisfied
with the vibration of the truck, he replaced those new tires with a new set of
Bridgestone tires on February 7. Two days later, on February 9, he returned to Kings,
reporting that his truck’s passenger seat shook at highway speeds. A technician who
rode with Lester on a test drive reported that he “could not feel a vibration[,] felt very
smooth to me.” No repairs were performed at Kings.
{¶8} On February 16, Lester took his truck to a third dealership, Jeff Wyler
Chrysler. The technicians test drove it and verified that the passenger seat shook at
highway speeds. They checked that the seat was mounted properly, and they
performed no repairs, noting that the truck “is operating as designed.”
{¶9} On March 14, Lester replaced the Bridgestone tires with new Firestone
tires. According to Lester, the vibration problem persisted.
{¶10} At some later point, when an employee of a fourth dealership, Jake
Sweeney Chrysler, entered Lester’s Firestone store to make a purchase, Lester told him
about the vibration he felt with his truck, so the Jake Sweeney employee told him to
bring it to his dealership. On December 12, Lester took his truck to Jake Sweeney. No
repairs were performed. According to Lester, the technicians told him that he needed
to get a vibration analyzer but they did not have one. Lester testified, “When I went
to pick up the car, they told me I needed to get a vibration analyzer, and they didn’t
have it. And they had to order it in, and they would call me.” When he realized that
the printed work order did not include “anything on it as to what they did or what the
next steps were,” he requested that an employee handwrite on the work order that they
had road tested the truck and that they were waiting on a vibration analyzer. A
handwritten note on the work order stated: “shop foreman road tested and
experienced vibration/waiting on analyzer will call.”
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Lester reinstalled the original Goodyear tires on his truck in January
2018. He testified that the truck’s vibration persisted. Having received no call from
Jake Sweeney, he called four or five different dealerships in an attempt to find a
vibration analyzer, but none of them had one.
{¶12} In February, FCA initiated Customer Assistance Inquiry Record (CAIR)
33350085 in regards to Lester’s concern. The record stated that FCA “[c]ontacted
Jake Sweeney. They have a vibration analyzer, but they only use it when the vehicle
has a vibration. This vehicle does not.”
{¶13} In August 2018, Lester filed an action against FCA, alleging claims for:
(1) violation of Ohio’s Lemon Law; (2) breach of express and implied warranty in
violation of the MMWA; (3) violation of Ohio’s CSPA; and (4) tortious breach of
warranty. As relevant here, Lester alleged that FCA breached the CSPA by violating
the Lemon Law and the MMWA and by breaching its expressed or implied warranties.
{¶14} In March 2020, the case proceeded to a jury trial.
{¶15} At trial, Lester testified to the truck’s vibration at highway speeds and
about his taking it to multiple FCA dealerships. He said he had owned the truck just
over three years and that he had put about 75,000 to 80,000 miles on the truck. He
acknowledged, as a person “working in the industry,” that his putting approximately
22,000 to 25,000 miles on the truck per year was “on the high end of average,” in that
“most people drive about 15 to 18,000 miles a year.” He had taken the truck on trips
to Tennessee multiple times, and to North Carolina as well. He had never taken the
truck to a dealership for any concern other than the vibration he felt at highway speeds.
The truck had never broken down, failed to start, or had any other problems, including
when he used it to tow his boat on a trailer.
{¶16} Lester’s expert witness, Matt Overbeck, an automotive technician and
owner of an independent automotive repair facility, testified that in January 2019,
Lester retained him to inspect his truck. When Lester took him on a test drive,
5
OHIO FIRST DISTRICT COURT OF APPEALS
Overbeck said they were able to experience the truck’s vibration in different degrees
of intensity, which varied by speed and road condition. He said that he felt the
vibration “in the butt of the seat,” and noticed that the rear-view mirror and seat backs
shook.
{¶17} Overbeck performed a visual inspection of the wheels, tires, suspension
components, and drivetrain, and found nothing that appeared to be “worn, unsafe,
[or] out of place.” He observed no obvious issues with the wheels and tires when he
put them on a balancer. He did not believe that the tires would cause the truck’s
vibration. He saw nothing unsafe about the truck, no fluid leaks, no signs of abnormal
wear, no loose or misplaced or misaligned parts. He agreed that the truck ran well,
and other than his feeling a vibration, he discerned no other issues with the truck’s
mechanical functions.
{¶18} Overbeck was asked about a diagnostic tool called a vibration analyzer.
He testified that a vibration analyzer is not necessary to diagnose vibration. He said
that instead of using a vibration analyzer, he determines whether a vibration exists
“from a seat of the pants customer perception[,] [t]echnician perception of what would
be considered abnormal or out of the ordinary.” According to Overbeck, the vibration
that he experienced in Lester’s truck was not what he considered to be normal
operation of the vehicle. He acknowledged that he did not know whether the amount
of vibration he felt in the truck was within normal limits, and that he could not testify
as to whether Lester’s truck operated differently than any other 2016 Ram 1500.1
{¶19} In its case,2 FCA presented the testimony of Roland Dube, a technical
adviser employed by FCA. Dube testified that a vibration analyzer is a computer box
with sensors that indicate the strength and speed of vibrations. He said the device can
1 Lester also presented the testimony of his stepbrother Kodie Artmayer and of his friend, Vincent
Kreinist, a vehicle repair technician.
2 FCA also presented the testimony of Chad Moss, Lester’s coworker at Firestone Complete Auto
Care.
6
OHIO FIRST DISTRICT COURT OF APPEALS
help a technician pinpoint the source of a vehicle’s vibration and can diagnose whether
or not a vehicle is vibrating abnormally.
{¶20} Dube performed an inspection of Lester’s truck in March 2019 and
found nothing that would cause the truck to vibrate abnormally. When he test drove
the truck, he felt no abnormal vibration, and said that he “thought the truck drove
actually better than average.” He used a vibration analyzer on the truck, which
registered no abnormal vibrations and confirmed what he described as “the seat of the
pants feel.” In his opinion, the truck was fit for its ordinary purpose of providing
personal transportation and contained no warranty defect.
{¶21} The trial court denied FCA’s motions for a directed verdict made at the
close of Lester’s evidence and at the close of all the evidence, and the case was
submitted to the jury. The jury returned a verdict in favor of FCA on Lester’s Lemon
Law, MMWA, and breach-of-warranty claims. In response to interrogatories, the jury
expressly found that Lester’s vehicle did not have a defect that was covered under
FCA’s written warranties and that FCA did not breach its implied warranty of
merchantability. The jury found in favor of Lester on his CSPA claim, finding that FCA
committed an unfair or deceptive act, which the jury described in an interrogatory as:
“Dealer had possession of a vibration analyzer (CAIR # 33350085) and never
contacted plaintiff[.]” The jury awarded Lester $10,000 as economic damages and
$1,500 as damages for mental anguish or emotional distress on his CSPA claim. The
trial court overruled FCA’s motion for judgment notwithstanding the verdict
(“JNOV”).
{¶22} In September 2021, the trial court held a hearing on Lester’s motion for
attorney fees. Thereafter, the court entered judgment in favor of Lester against FCA
on the CSPA claim in the amount of $11,500, plus court costs. With respect to the
CSPA claim, the court found, “[I]t is an unfair or deceptive act or practice for a supplier
to have possession of a vibration analyzer but never contact the consumer.” The court
7
OHIO FIRST DISTRICT COURT OF APPEALS
awarded Lester $41,213.25 in attorney fees and litigation costs. The court dismissed
Lester’s Lemon Law, MMWA, and breach-of-warranty claims with prejudice. FCA
filed an appeal, and Lester filed a cross-appeal. We address Lester’s cross-appeal first.
Lester’s Cross-Appeal
{¶23} In a single assignment of error, Lester argues that the trial court erred
when it instructed the jury as to the burden of proof required to establish a defect for
purposes of his Lemon Law claim. He asserts that the court’s instructions did not
adequately state Ohio law regarding a consumer’s burden of proof in establishing a
defect. He contends that he was prejudiced by the error because the jury was misled
into believing that he was required to meet a higher burden of proof in establishing a
defect than is required by Ohio law.
{¶24} A trial court must provide jury instructions that correctly and
completely state the law, which are warranted by the evidence in a case. Cromer v.
Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d
921, ¶ 22. “The question of whether a jury instruction is legally correct and factually
warranted is subject to de novo review.” Id. Generally, requested instructions should
be given if they are correct statements of the law, are applicable to the facts in the case,
and if reasonable minds might reach the conclusion sought by the instruction. State
v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240, citing Murphy
v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991); Hayes v.
Durrani, 1st Dist. Hamilton No. C-190617, 2021-Ohio-725, ¶ 9.
{¶25} A trial court need not give a proposed instruction in the precise language
requested by the party and retains discretion to use its own language to communicate
the same legal principles. Becker v. Direct Energy, LP, 2018-Ohio-4134, 112 N.E.3d
978, ¶ 78 (2d Dist.); New Concept Hous., Inc. v. United Dept. Stores Co., 1st Dist.
Hamilton No. C-080504, 2009-Ohio-2259, ¶ 21. And the court has discretion to
refuse to give a requested instruction that is either redundant or immaterial to the
8
OHIO FIRST DISTRICT COURT OF APPEALS
case. New Concept Hous., Inc. at ¶ 21; Oxford Mining Co., LLC v. Ohio Gathering Co.,
LLC, 7th Dist. Belmont No. 19 BE 0016, 2020-Ohio-1363, ¶ 81.
{¶26} R.C. 1345.72 provides in relevant part:
(A) If a new motor vehicle does not conform to any applicable
express warranty and the consumer reports the nonconformity to the
manufacturer, its agent, or its authorized dealer during the period of
one year following the date of original delivery or during the first
eighteen thousand miles of operation, whichever is earlier, the
manufacturer, its agent, or its authorized dealer shall make any repairs
as are necessary to conform the vehicle to such express warranty,
notwithstanding the fact that the repairs are made after the expiration
of the appropriate time period.
(B) If the manufacturer, its agent, or its authorized dealer is
unable to conform the motor vehicle to any applicable express warranty
by repairing or correcting any nonconformity after a reasonable number
of repair attempts, the manufacturer, at the consumer’s option * * *
either shall replace the motor vehicle with a new motor vehicle
acceptable to the consumer or shall accept return of the vehicle from the
consumer and refund each of the following:
(1) The full purchase price;
(2) All incidental damages, including, but not limited to,
any fees charged by the lender or lessor for making or canceling
the loan or lease, and any expenses incurred by the consumer as
a result of the nonconformity, such as charges for towing, vehicle
rental, meals, and lodging.
9
OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} “Nonconformity” means “any defect or condition that substantially
impairs the use, value, or safety of a motor vehicle to the consumer and does not
conform to the express warranty of the manufacturer or distributor.” R.C. 1345.71(E).
{¶28} In sum, to prevail on a Lemon Law claim, a plaintiff must demonstrate:
(1) the plaintiff is the owner of a motor vehicle covered by an express warranty; (2) the
motor vehicle does not conform to the applicable express warranty; (3) the plaintiff
reported the nonconformity to the manufacturer, its agent, or its authorized dealer
within one year following the original date of delivery or the first 18,000 miles of
operation, whichever is earlier; and (4) the manufacturer, its agent, or its authorized
dealer is unable to conform the vehicle to any applicable express warranty by repairing
or correcting a defect that substantially impairs the use, value, or safety of the motor
vehicle, after a reasonable number of repair attempts. See Diguglielmo v. FCA US
LLC, 6th Dist. Lucas No. L-19-1187, 2020-Ohio-2858, ¶ 29; Iams v. DaimlerChrysler
Corp., 174 Ohio App.3d 537, 2007-Ohio-6709, 883 N.E.2d 466, ¶ 13 (3d Dist.).
{¶29} Lester requested that the trial court give the following instruction on a
consumer’s burden of proof in establishing a defect:
Under the Ohio Lemon Law, the Plaintiff is required to present
evidence that from which a reasonable inference can be made that a
specific problem with the vehicle is due to a defective part which is
covered by the warranty. Symptoms may be circumstantial evidence of
a defect. The Plaintiff does not prove the precise cause of the condition,
and you may find a nonconformity exists even if the evidence fails to
eliminate all other possible causes of the problem.
{¶30} Lester acknowledges that the applicable Ohio Jury Instruction (“OJI”)
for “Nonconforming motor vehicle (Lemon Law)” states in relevant part: “To recover,
the plaintiff must prove that the * * * motor vehicle does not conform to (describe
applicable express warranties)[.]” 1 Ohio Jury Instructions, CV Section 529.01. (Rev.
10
OHIO FIRST DISTRICT COURT OF APPEALS
Aug. 20, 2008). But, Lester argues, this is simply “the suggested language,” which “the
trial court has the discretion to supplement[.]” He contends that “[t]he trial court’s
error was in not exercising its discretion to supplement the OJI instructions” and “in
failing to give a complete and accurate statement of a consumer’s burden of proof in
establishing a defect.”
{¶31} In its instructions to the jury, the trial court used the first sentence,
nearly verbatim, from Lester’s proposed instruction:
The Plaintiff is required to present evidence that from which a
reasonable inference can be made that a specific problem with the
vehicle is due to a defective part of the vehicle which is covered by FCA
US’s express written warranty.
{¶32} The trial court’s instruction was an accurate and complete statement of
the law set forth in R.C. 1345.72(A), and went beyond the suggested OJI to include
language permitting the jury to reasonably infer that a warrantable defect caused the
vehicle’s problem. Nothing in the language of the court’s instruction suggested that
Lester was required to identify a certain defect or eliminate all possible causes of the
problem. The additional instructions proposed by Lester merely restated that the jury
was permitted to infer that the symptom or problem was due to a defective part. The
trial court did not abuse its discretion by refusing to give Lester’s redundant
instructions. We overrule Lester’s sole assignment of error.
FCA’s Appeal
{¶33} In three assignments of error, FCA argues that the trial court erred by
(1) denying FCA’s motion for a directed verdict on Lester’s CSPA claim; (2) failing to
grant FCA’s motion for JNOV on Lester’s CSPA claim; and (3) exceeding its statutory
authority under R.C. 1345.09 in granting attorney fees to Lester. We analyze the
11
OHIO FIRST DISTRICT COURT OF APPEALS
assignments of error out of order because the second assignment of error is dispositive
of FCA’s appeal.
{¶34} In its second assignment of error, FCA argues that the trial court erred
by not granting its motion for JNOV because the jury’s findings of fact precluded
recovery under the CSPA. We agree.
{¶35} A Civ.R. 50(B) motion for JNOV will be granted when the evidence,
construed most strongly in favor of’ the nonmoving party is not “ ‘legally sufficient to
sustain the verdict’ rendered at trial.” WWSD, LLC v. Woods, 10th Dist. Franklin No.
20AP-403, 2022-Ohio-952, ¶ 77, quoting Environmental Network Corp. v. Goodman
Weiss Miller L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 23.
Conversely, a motion for JNOV must be denied when substantial, competent evidence
has been presented from which reasonable minds could reach different conclusions.
A trial court’s ruling on a motion for JNOV presents a question of law that we review
de novo. Link v. Firstenergy Corp., 147 Ohio St.3d 285, 2016-Ohio-5083, 64 N.E.3d
965, ¶ 22. In reviewing the trial court’s denial of FCA’s motion, we must construe the
evidence most strongly in favor of Lester. Id.{¶36} The CSPA prohibits suppliers from committing unfair or deceptive
consumer sales practices or unconscionable acts or practices in connection with a
consumer transaction, whether the act or practice occurs before, during, or after the
transaction. R.C. 1345.02(A) and 1345.03(A). In general, the act “defines ‘unfair or
deceptive consumer sales practices’ as those that mislead consumers about the nature
of the product they are receiving, while ‘unconscionable acts or practices’ relate to a
supplier manipulating a consumer’s understanding of the nature of the transaction at
issue.” Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d
791, ¶ 24.
{¶37} In determining whether an act or practice is deceptive for purposes of
the CSPA, the question is whether the supplier did or said something, regardless of
12
OHIO FIRST DISTRICT COURT OF APPEALS
intent, that has the likelihood of inducing in the mind of a consumer a belief that was
not in accord with the facts. Frank v. WNB Group, LLC, 2019-Ohio-1687, 135 N.E.3d
1142, ¶ 26 (1st Dist.). For conduct to be deceptive under the CSPA, it must be both
false and material to the consumer transaction. Grgat v. Giant Eagle, Inc., 2019-
Ohio-4582, 135 N.E.3d 846, ¶ 16 (8th Dist.); Richards v. Beechmont Volvo, 127 Ohio
App.3d 188, 711 N.E.2d 1088 (1st Dist.1998).
{¶38} Courts have held that a manufacturer’s breach of warranty can
constitute a violation of the CSPA. Boyle v. Daimler Chrysler Corp., 2d Dist. Clark
No. 2001-CA-81, 2002-Ohio-4199, ¶ 74 (manufacturer’s failure to repair a defect
covered by a warranty); Layne v. McGowen, 2d Dist. Montgomery No. 14676, 1995
Ohio App. LEXIS 2120 (May 24, 1995). However, where a consumer’s CSPA claim is
predicated upon a manufacturer’s breach of warranty, the CSPA claim cannot survive
where there is no evidence that the manufacturer breached the warranty. Whitt v.
Mazda Motor of Am., Inc., 5th Dist. Stark No. 2010CA00343, 2011-Ohio-3097, ¶ 26
(summary judgment appropriately granted on CSPA claim where the manufacturer
breached no warranty obligations); Tsirikos-Karapanos v. Ford Motor Co., 2017-
Ohio-8487, 99 N.E.3d 1203, ¶ 41 (8th Dist.) (summary judgment properly granted
where consumer failed to prove existing defect or a resulting breach of warranty).
{¶39} In this case, Lester alleged FCA violated the CSPA by violating the
MMWA and the Lemon Law and by breaching its express or implied warranties. At
trial, the parties stipulated that Lester was a “consumer,” FCA was a “supplier,” and
the sale of the 2016 Dodge Ram 1500 was a “consumer transaction,” as those terms
are defined in the CSPA. Therefore, the only issue remaining for the jury was whether
FCA committed an unfair, deceptive, or unconscionable act in connection with the sale
of the vehicle by breaching its express or implied warranties.
{¶40} The jury found in favor of FCA on Lester’s MMWA, Lemon Law, and
breach-of-warranty claims, each of which was predicated on the existence of a
13
OHIO FIRST DISTRICT COURT OF APPEALS
warrantable defect. The jury specifically found no warrantable defect and that FCA
breached no warranty. Because Lester’s CSPA claim was derivative of his other
warranty claims, the jury’s finding of no warrantable defect was fatal to the CSPA
claim, and the trial court should have granted FCA’s motion for JNOV on that claim.
{¶41} Acknowledging the jury’s verdict in favor of FCA on his MMWA, Lemon
Law, and breach-of-warranty claims, Lester now contends that his CSPA claim was not
derivative of those claims. He points out that he argued at trial that FCA violated the
CSPA not only by breaching its warranties, but by refusing “to look any further to
diagnose the truck’s vibration.” This is just another way of saying that FCA breached
its warranty obligation by disclaiming responsibility under the warranties to repair a
defect.
{¶42} For the first time, Lester asserts that FCA’s unfair or deceptive act
occurred when “FCA explicitly instructed Jake Sweeney not to use the vibration
analyzer in its possession on Lester’s truck.” Lester made no such allegation in his
arguments at trial. Rather, he argued that the unfair practice committed by FCA
occurred when he was refused service at the dealerships, when the dealerships refused
to inspect the drivetrain and suspension, and/or when FCA failed to use corporate
resources to diagnose the problem. Noticeably absent from his argument was the
claim that FCA instructed Jake Sweeney not to use the vibration analyzer.
{¶43} Not only did Lester not argue it at trial, but no evidence or testimony at
trial suggested that FCA instructed the dealer not to use it. Moreover, the jury made
no such finding—the jury found the unfair or deceptive act to be: “Dealer had
possession of a vibration analyzer (CAIR # 33350085) and never contacted
plaintiff[.]” That CAIR record simply stated that FCA “[c]ontacted Jake Sweeney. They
have a vibration analyzer, but they only use it when the vehicle has a vibration. This
vehicle does not.”
14
OHIO FIRST DISTRICT COURT OF APPEALS
{¶44} Whether the dealership told Lester about the vibration analyzer, the
jury’s specific findings of no defect and no breach of warranty precluded any finding
that FCA misled Lester about the nature of the vehicle or the application of its
warranties. And the dealership’s conduct, even if it could be said to have been “false,”
was not “material” to the transaction where Dube’s use of a vibration analyzer on
Lester’s truck served to support the absence, rather than the presence, of a defect.
Moreover, Lester’s trial counsel argued in closing that the results of Dube’s use of the
device should be discounted because the device is so rarely used and is unnecessary to
diagnose a vibration problem. The jury’s finding that FCA committed an unfair or
deceptive act by its dealer’s failure to contact Lester about its possession of a device to
diagnose a defect was inconsistent with its findings that the truck had no defect to
diagnose or repair and that FCA did not breach its warranties. Therefore, in the
absence of a defect, notice to Lester regarding a vibration analyzer was immaterial,
and therefore, not “deceptive” under the CSPA, as a matter of law.
{¶45} Because the trial court erred by failing to grant FCA’s motion for JNOV
on Lester’s CSPA claim, we sustain FCA’s second assignment of error. We remand this
case to the trial court with instructions that it enter judgment in favor of FCA on
Lester’s CSPA claim and that it vacate its awards for damages and for attorney fees.
Our disposition of this assignment of error renders moot FCA’s first and third
assignments of error. We affirm the trial court’s judgment in all other respects.
Judgment accordingly.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
15