Day v. Beau Townsend Ford , 129 Ohio App. 3d 265 ( 1998 )

^* Reporter's Note: a discretionary appeal to the Supreme Court of Ohio was not allowed in (1998), 84 Ohio St. 3d 1439,702 N.E.2d 1215. Appellants, Robin and Billy Day, appeal from the judgment of the Vandalia Municipal Court in favor of the appellees, Beau Townsend Ford and Ford Motor Company, upon a complaint filed by appellants seeking damages pursuant to Ohio's Lemon Law, R.C.1345.71 et seq.

The appellants alleged in their complaint filed in April 1997 that they entered into a lease agreement on June 27, 1996 with Beau Townsend Ford to lease a 1995 Ford Mustang with approximately twenty-six thousand miles on the vehicle's odometer. They alleged that they returned the vehicle on July 16, 1996 because the engine was making noise "like it was going to blow up."

The Days alleged that the vehicle was returned to them on August 13, 1996 by Beau Townsend after the dealer represented that the vehicle's, engine had been replaced. The Days further alleged that they returned the vehicle on August 23, 1996, when the vehicle again began making noise, and lost oil pressure and engine power. They alleged that the vehicle would not travel faster than thirty-five miles per hour.

The Days alleged that the vehicle was again returned to Beau Townsend and the dealer again allegedly replaced the engine with a new one. The Days alleged that they drove the vehicle until the odometer reached thirty-three thousand miles but the vehicle continued to experience engine noise and loss of oil. The Days alleged that Beau Townsend and Ford were unwilling to repair the vehicle's defects and thus they were entitled to the remedies available to them under the Lemon Law.

Both defendants answered the complaint and denied liability. Specifically, Beau Townsend alleged that Ohio's Lemon Law had no application to a used leased vehicle. Both defendants moved for judgment on the pleadings, contending that the Lemon Law was inapplicable to the vehicle at issue in the case. The magistrate recommended that the defendants' motions be granted because the "Complaint expressly states that the car [was] leased with 26,000 miles showing on the odometer [and, thus] it was apparent to the Plaintiff that this was not a new motor vehicle." The trial court overruled the plaintiffs' objections, adopted the magistrate's report as submitted, and dismissed the complaint.

In five related assignments of error, appellants contend that the trial court erred in granting the defendants' motions for judgment on the pleadings.

Appellants argue that they should be accorded the protection of Ohio's Lemon Law because the vehicle they leased was "new" pursuant to R.C. 4517.01 (C). That statute provides that a "new motor vehicle" means a motor vehicle to which the legal title has never been transferred by a manufacturer, remanufacturer, distributor, or dealer to an ultimate purchaser.

R.C. 1345.72 (A) provides:

"(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." (Emphasis added).

The trial court relied on this court's opinion in Steger v.Superior Dodge, Inc. (Oct. 11, 1985), Montgomery App. No. 9165, unreported, 1985 WL 6944. In Steger we held that "new" as used in R.C. 1345.02 (B) (3), the Consumer Sales Practices Act, is not necessarily the same "new" as used in R.C. 4517.01 (C). Judge Wolff wrote on behalf of our court:

"A new buyer, we believe, is more concerned — and rightfully so — with whether the car has more than the minimal mileage incidental to its delivery to the dealer rather than whether it has ever been transferred in the past by the dealer." Id. at 3.

Appellants argue that the trial court improperly relied onSteger as it involved the interpretation of the Consumer Sales Act. In any event, they argue that the Lemon Law applies to them because their vehicle was subject to an express warranty and they are "consumers" as defined by R.C. 1345.71. In particular, they argue that they are "consumers" within the meaning of R.C.1345.72 because they are persons who are entitled by the terms of the warranty to enforce the warranty.

We do not quarrel with appellants' contention that Ohio's Lemon Law includes "leased" motor vehicles. At least one Ohio appellate court has so held. See Pertuset v. Ford Motor Co. (1994),96 Ohio App. 3d 777, 645 N.E.2d 1329. Although appellants may be "consumers" under the Lemon Law because they may be entitled to enforce an express warranty, they have not convinced us that the vehicle they leased from Beau Townsend was a "new" vehicle. We find the reasoning we employed in Steger to be equally applicable to Ohio's Lemon Law.

State statutes referred to by the generic name "lemon laws" generally provide purchasers of new motor vehicles a statutory warranty. See Annotation, Lemon Laws (1987), 51 A.L.R. 4th 872, 874. At least one state also provides a statutory warranty, a lemon law, for used motor vehicles. See Annotation, Liability for Representations and Express Warranties in Connection with the Sale of Used Motor Vehicle (1971), 36 A.L.R. 3d 125.

We are also persuaded that the vehicle leased by the Days was not covered by R.C. 1345.71 et seq. because any alleged nonconformity with any applicable express warranty could not be reported by the Days within eighteen thousand miles of operation, because the vehicle when leased to them already had twenty-six thousand miles on its odometer.

We conclude that the trial court properly granted the defendants' motions for judgment on the pleadings. O'Brien v.Univ. Community Tenants Union (1975), 42 Ohio St. 2d 242,71 O.O.2d 223, 327 N.E.2d 753. The Lemon Law clearly covers "new" vehicles and not used vehicles. The appellants' assignments of error are overruled.

The judgment of the trial court is affirmed.

Judgment affirmed.

FAIN, J., concurs.

GRADY, J., dissents.