Whitt v. Mazda Motor of Am., Inc. ( 2011 )


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  • [Cite as Whitt v. Mazda Motor of Am., Inc., 
    2011-Ohio-3097
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    WILLIAM E. WHITT, JR., ET AL.                              JUDGES:
    Hon. Patricia A. Delaney, P.J.
    Plaintiffs-Appellants                              Hon. William B. Hoffman, J.
    Hon. John W. Wise, J.
    -vs-
    Case No. 2010CA00343
    MAZDA MOTOR OF AMERICA, INC.,
    ET AL.
    OPINION
    Defendants-Appellees
    CHARACTER OF PROCEEDING:                              Appeal from the Stark County Common
    Pleas Court, Case No. 2010CV00602
    JUDGMENT:                                             Affirmed
    DATE OF JUDGMENT ENTRY:                               June 20, 2011
    APPEARANCES:
    For Plaintiffs-Appellants                             For Defendants-Appellees
    G. IAN CRAWFORD                                       H. TOBY SCHISLER
    Crawford, Lowry & Associates, L.L.C.                  ALICIA M. STEFANSKI
    116 Cleveland Ave., N.W., Suite 800                   Dinsmore & Shohl
    Canton, Ohio 44702                                    1900 Chemed Center
    255 E. Fifth Street
    Cincinnati, Ohio 45202
    Stark County, Case No. 2010CA00343                                                     2
    Hoffman, J.
    {¶1}   Plaintiffs-appellants William E. Whitt, Jr., et al. appeal the November 18,
    2010 Judgment Entry entered by the Stark County Court of Common Pleas, which
    granted summary judgment in favor of defendant-appellee Mazda Motor of America,
    Inc.
    STATEMENT OF THE FACTS AND CASE
    {¶2}   On June 21, 2008, Appellants purchased a 2008 Mazda CX-7 from Park
    Mazda. Appellants began to experience problems with the vehicle and brought the
    vehicle to Firestone in Canton, Ohio for repair.         Thereafter, on three additional
    occasions Appellants brought the vehicle to Park Mazda with complaints of tire wear as
    well as noises and/or vibrations from the tires. Park was unable to resolve the issue,
    and Appellants presented the vehicle to other dealers, all to no avail.
    {¶3}   On February 12, 2010, Appellants filed a Complaint in the Stark County
    Court of Common Pleas, naming Appellee and NSGM Corporation dba Park Mazda of
    Wooster as defendants. The Complaint alleged violations of Ohio’s Lemon Law, breach
    of expressed and implied warranties, violations of the federal Magnuson-Moss Warranty
    Act, and violations of Ohio’s Consumer Sales Practices Act.          Following discovery,
    Appellee filed a motion for summary judgment. Appellants filed a motion in opposition
    thereto to which Appellee filed a reply brief. Via Judgment Entry filed November 18,
    2010, the trial court granted summary judgment in favor of Appellee, finding the
    problems Appellants experienced with their vehicle were caused by a design defect.
    The trial court concluded the vehicle warranty did not extend to defects in design;
    therefore, Appellants’ claims fail.
    Stark County, Case No. 2010CA00343                                                     3
    {¶4}   It is from this judgment Appellants appeal, raising the following
    assignments of error:
    {¶5}   “I. THE COURT BELOW ERRED AS A MATTER OF LAW TO THE
    EXTENT IT FOUND THAT OHIO REVISED CODE §1345.71 ET SEQ. (OHIO’S
    ‘LEMON LAW’) DID NOT APPLY TO THE CASE AT BAR.
    {¶6}   “II. THE COURT BELOW ERRED AS A MATTER OF LAW TO THE
    EXTENT IT FOUND THAT OHIO REVISED CODE §1345.01 ET SEQ. (OHIO’S
    CONSUMER SALES PRACTICES ACT) DID NOT APPLY TO THE CASE AT BAR
    AND THAT PLAINTIFFS-APPELLANTS COULD NOT PROCEED UNDER ANY
    CAUSE OF ACTION BASED ON AN ALLEGED BREACH OF THE WRITTEN
    WARRANTY.”
    Standard of Review
    {¶7}   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. The Wedding Party, Inc. (1987), 
    30 Ohio St.3d 35
    , 36, 
    506 N.E.2d 212
    . As
    such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
    Edison Co. (1996), 
    77 Ohio St.3d 102
    , 105, 
    671 N.E.2d 241
    .
    {¶8}   Civ.R. 56 provides summary judgment may be granted only after the trial
    court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
    the moving party is entitled to judgment as a matter of law; and 3) it appears from the
    evidence that reasonable minds can come to but one conclusion and viewing such
    evidence most strongly in favor of the party against whom the motion for summary
    Stark County, Case No. 2010CA00343                                                      4
    judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
    (1977), 
    50 Ohio St.2d 317
    , 
    364 N.E.2d 267
    .
    {¶9}   It is well established the party seeking summary judgment bears the
    burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
    Catrett (1987), 
    477 U.S. 317
    , 330, 
    106 S.Ct. 2548
    , 
    91 L.Ed.2d 265
    . The standard for
    granting summary judgment is delineated in Dresher v. Burt (1996), 
    75 Ohio St.3d 280
    at 293, 
    662 N.E.2d 264
    : “ * * * a party seeking summary judgment, on the ground that
    the nonmoving party cannot prove its case, bears the initial burden of informing the trial
    court of the basis for the motion, and identifying those portions of the record that
    demonstrate the absence of a genuine issue of material fact on the essential element(s)
    of the nonmoving party's claims. The moving party cannot discharge its initial burden
    under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
    evidence to prove its case. Rather, the moving party must be able to specifically point to
    some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
    nonmoving party has no evidence to support the nonmoving party's claims. If the
    moving party fails to satisfy its initial burden, the motion for summary judgment must be
    denied. However, if the moving party has satisfied its initial burden, the nonmoving party
    then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing
    there is a genuine issue for trial and, if the nonmovant does not so respond, summary
    judgment, if appropriate, shall be entered against the nonmoving party.” The record on
    summary judgment must be viewed in the light most favorable to the opposing party.
    Williams v. First United Church of Christ (1974), 
    37 Ohio St.2d 150
    , 
    309 N.E.2d 924
    .
    Stark County, Case No. 2010CA00343                                                       5
    I & II
    {¶10} Because Appellants’ assignments of error both assert error in the trial
    court’s granting summary judgment in favor of Appellee, we shall address them
    together. In their first assignment of error, Appellants challenge the trial court finding
    R.C. 1345.71, et seq., Ohio’s Lemon Law, was not applicable to the instant action. In
    their second assignment of error, Appellants challenge the trial court finding R.C.
    1345.01, et seq, Ohio’s Consumer Sales Practices Act, was not applicable to the instant
    situation; therefore, Appellants could not proceed under any cause of action based upon
    an alleged breach of expressed or implied warranty.
    {¶11} R.C. 1345.71, et seq. is designed to protect consumers from chronically
    defective new automobiles. It requires new vehicles to live up to warranties given by
    manufacturers. Ohio’s Lemon Law attaches a clear duty to sellers, and provides a clear
    remedy to buyers should the seller breach its duty.
    {¶12} Pursuant to R.C. 1345.72(A), a vehicle must abide by its warranty, and if
    the condition of the automobile does not meet what is warranted, the seller must repair
    it. R.C. 1345.72(A) provides:
    {¶13} “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.”
    Stark County, Case No. 2010CA00343                                                        6
    {¶14} While R.C. 1345.72(A) attaches a clear duty on sellers and gives them the
    opportunity to preclude recovery by making prompt repairs, R.C. 1345.72(B) provides
    consumers a swift and simple remedy should the car not be made right within a
    reasonable number of attempts. R.C. 1345.72(B) reads:
    {¶15} “(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, and subject to division (D) of this section, 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:
    {¶16} “(1) The full purchase price;
    {¶17} “(2) All incidental damages, * * *.”
    {¶18} The manufacturer’s express warranty in the case sub judice provides:
    {¶19} “Mazda warrants that your new Mazda Vehicle is free from defects in
    material or workmanship subject to the following terms and conditions.”
    {¶20} The trial court found the warranty did not cover claims of design defects.
    Appellant William Whitt, an ASE certified mechanic1, testified the design and
    specifications relative to the alignment/suspension were the only cause for the tire wear
    on his vehicle. Appellant William Whitt specifically stated the problems he experienced
    with his vehicle were the results of this alleged design defect.
    {¶21} To reiterate, Ohio’s Lemon Law requires manufacturers to honor a new
    motor vehicle’s express warranty by making any repairs necessary to conform the
    1
    An ASE certified mechanic is certified through the National Institute of Automotive
    Service Excellence after passing an examination.
    Stark County, Case No. 2010CA00343                                                         7
    vehicle to the warranty. The problems about which Appellants complained did not fall
    within the applicable expressed warranty on the vehicle. Accordingly, we find the trial
    court did not err in finding R.C. 1345.71, et seq. did not apply, and did not err in granting
    summary judgment in favor of Appellee on this issue.
    {¶22} We now turn to Appellants’ second assignment of error.              Appellants
    maintain the trial court erred in finding they could not maintain their breach of warranty
    claims.
    {¶23} Congress enacted the Magnuson-Moss Warranty Act, Section 2301 et
    seq., Title 15, U.S.Code, in 1975, in response to what it perceived to be widespread
    misuse by merchants of express warranties and disclaimers. Taylor, Read the Fine
    Print: Alabama Supreme Court Rules that Binding Arbitration Provisions in Written
    Warranties are Okay (2001), 2001 J.Disp.Resol. 165, fn. 2. The Act establishes a
    federal right of action for consumers to enforce written or implied warranties against
    suppliers, warrantors, or service contractors. Hyundai Motor Am., Inc. v. Goodin
    (Ind.2005), 
    822 N.E.2d 947
    , 951. In addition to these protections, the Act limits the
    ability of manufacturers to disclaim or modify implied warranties in cases where they
    have offered express warranty protection. 
    Id.
     The Act does not, however, establish new
    implied warranties or otherwise modify the implied warranties existing according to state
    law. Instead, the Act looks to the governing state law and adopts the implied warranty
    protections already established.
    {¶24} In order to establish a breach of a written warranty under Magnuson Moss,
    Appellants must establish the existence of a written warranty and that the manufacturer
    failed to cure a defect in their vehicle after being afforded a reasonable number of
    Stark County, Case No. 2010CA00343                                                   8
    attempts. 15 U.S.C. 2301, et seq.; Sharkus v. Daimler Chrysler Corp., Cuyahoga App.
    No. 79218, 
    2002-Ohio-5599
    , at para 11. Having found, supra, the written warranty on
    Appellants’ vehicle did not cover design defects, we find Appellants cannot establish a
    claim under the Magnuson-Moss Warranty Act.
    {¶25} Furthermore, Appellants’ claims for breach of implied warranty also fail.
    “[P]urchasers of automobiles may assert a contract claim for breach of implied warranty
    only against parties with whom they are in privity” Curl v. Volkswagen of America, Inc.
    
    114 Ohio St.3d 266
    , 
    2007-Ohio-3609
    , at 26. Here, the trial court correctly found
    Appellants were not in privity with Appellee.
    {¶26} Appellants’ claims under the Ohio Consumer Sales Practices Act are
    based upon the assertion Appellee breached its expressed and implied warranty
    obligations to Appellants. Having found Appellee did not breach any warranty
    obligations, we find the trial court did not err in finding the Ohio Consumers Sales
    Practices Act not applicable to the instant action.
    {¶27} Based upon the foregoing, Appellants’ first and second assignments of
    error are overruled.
    Stark County, Case No. 2010CA00343                                                9
    {¶28} The judgment of the Stark County Court of Common Pleas is affirmed.
    By: Hoffman, J.
    Delaney, P.J. and
    Wise, J. concur                          s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ John W. Wise _____________________
    HON. JOHN W. WISE
    Stark County, Case No. 2010CA00343                                               10
    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    WILLIAM E. WHITT, JR., ET AL.             :
    :
    Plaintiffs-Appellants              :
    :
    -vs-                                      :        JUDGMENT ENTRY
    :
    MAZDA MOTOR OF AMERICA, INC.,             :
    ET AL.                                    :
    :
    Defendants-Appellees               :        Case No. 2010CA00343
    For the reasons stated in our accompanying Opinion, the judgment of the Stark
    County Court of Common Pleas is affirmed. Costs assessed to Appellant.
    s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ John W. Wise _____________________
    HON. JOHN W. WISE
    

Document Info

Docket Number: 2010CA00343

Judges: Hoffman

Filed Date: 6/20/2011

Precedential Status: Precedential

Modified Date: 10/30/2014