Whitt v. Mazda Motor of Am., Inc.

[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 280at 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