Taylor v. Honda Motorcars, Inc.

[Cite as Taylor v. Honda Motorcars, Inc., 2019-Ohio-1891.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ERIC TAYLOR, ET AL., :
Plaintiffs-Appellants, :
No. 107840
v. :
HONDA MOTORCARS, INC. :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 16, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-896286
Appearances:
Gilbert W.R. Rucker, III, for appellants.
The Gertsburg Law Firm, Mark M. Turner, Nicholas P.
Weiss, and Cynthia M. Menta, for appellee.
EILEEN A. GALLAGHER, J.:
Plaintiffs-appellants Eric and Marcia Taylor, individually and on
behalf of their minor daughter, (collectively, “the Taylors”) appeal from a decision
of the Cuyahoga County Court of Common Pleas granting summary judgment in
favor of defendant-appellee Honda Motorcars, Inc. (“Motorcars”) on the Taylors’
claim for breach of contract. For the reasons that follow, we affirm the trial court.
Factual and Procedural Background
On October 9, 2017, Eric Taylor leased a 2017 Honda Accord from
Motorcars pursuant to a closed-end vehicle lease agreement (the “lease
agreement”). Eric Taylor was the only lessee listed on the lease agreement. Eric
Taylor took possession of the vehicle at approximately 7:00 p.m. on October 9.
Unbeknownst to the Taylors, a couple hours earlier, another Honda Accord had
been stolen from the dealership. Motorcars contacted the police, reporting that the
vehicle had been stolen. Due to an error by Motorcars, the vehicle leased by Eric
Taylor was assigned the same temporary license plate as the vehicle that had been
stolen.
At some point after Eric Taylor leased the vehicle, Marcia Taylor was
driving the vehicle. 1 The Taylors’ minor daughter was a passenger in the vehicle.
Because the temporary license plate on the vehicle leased by Taylor matched the
temporary license plate on the stolen vehicle, police pulled over the vehicle and
detained Marcia Taylor and the Taylors’ daughter. The error was discovered and no
criminal charges were filed against the Taylors.
1 There is nothing in the record that indicates the date on which this occurred. In
their brief, the Taylors assert that this occurred while she was driving her daughter to
elementary school.
Shortly thereafter, Eric Taylor returned the leased vehicle to the
dealership. Motorcars returned the money Eric Taylor had paid under the lease
agreement and the parties mutually terminated the agreement.
On April 16, 2018, Eric and Marcia Taylor, individually and on behalf
of their minor daughter, filed a complaint in the Cuyahoga County Court of Common
Pleas, asserting claims of breach of contract, defamation per se/defamation, false
arrest/seizure, negligence/negligence per se and punitive damages against
Motorcars. The Taylors alleged that Motorcars was negligent in “mis-assign[ing]”
the temporary license plate to the leased vehicle, that Motorcars placed the
temporary license plate of the stolen vehicle on the leased vehicle “with a total and
reckless disregard for the truth and the safety of the Taylors,” and that Motorcars
breached the leased agreement when it “caused the vehicle to be seized by officers
as a result of defendants negligently placing a faulty temporary tag upon the vehicle
of the Taylor’s [sic].” The Taylors also alleged that Marcia Taylor had been “placed
in handcuffs[,] humiliated and embarrassed before the public as a result of
[Motorcars’] negligence and defamatory conduct,” that Motorcars caused Marcia
Taylor and their daughter to be “seized by local [p]olice and detained against their
will” and that Motorcars had breached a statutory duty it owed to the Taylors under
R.C. 4503.182 “to ensure a clear right to Plaintiff to possess and operate the vehicle.”
The Taylors claimed that, as a result of Motorcars’ actions, they had “suffered
economic damages resulting from the loss of use of the automobile,” that “the lives
of * * * Marcia Taylor and her minor daughter were placed at great risk” and that the
Taylors “suffer[ed] severe emotional distress to this day and into the indefinite
future.” The Taylors sought to recover compensatory damages in excess of $25,000,
punitive damages, attorney fees and costs.
On April 25, 2018, Motorcars filed a motion to dismiss the complaint
pursuant to Civ.R. 12(B)(6). Motorcars argued that (1) the Taylors’ breach of
contract claim was barred because it failed to attach a copy of the lease agreement
to the complaint as required under Civ.R. 10(D)(1); (2) an absolute privilege to
report criminal activity shielded Motorcars from liability on the Taylors’ defamation
claim; (3) the Taylors’ false arrest/seizure claim could only be brought against the
persons making the arrest; (4) the Taylors’ negligence claim failed because R.C.
4503.182, which outlines the procedure for a person purchasing a motor vehicle to
obtain a temporary license placard or windshield sticker, did not give rise to a duty
on the part of Motorcars to “ensure a clear right to Plaintiff to possess and operate
the vehicle” and because Ohio does not recognize a cause of action for negligent
misidentification and (5) there is no independent cause of action for punitive
damages under Ohio law.
In response to Motorcars’ motion to dismiss, the Taylors filed a
motion to supplement their complaint pursuant to Civ.R. 10(D) with a copy of the
lease agreement. The Taylors did not otherwise timely oppose Motorcars’ motion to
dismiss. On May 9, 2018, after “carefully review[ing]” Motorcars’ arguments, the
trial court granted Motorcars’ motion to dismiss on all counts except the claim for
breach of contract. With respect to the breach of contract claim, the trial court
denied the Taylors’ motion to supplement because the copy of the lease agreement
they had attached to the motion was illegible but indicated that it would not dismiss
the breach of contract claim on that basis because it anticipated that “a clean copy
of the lease agreement can very likely be obtained through minimal written
discovery.”
The Taylors filed a combined motion to vacate judgment, motion for
reconsideration and motion for leave to file an opposition to Motorcars’ motion to
dismiss instanter, asserting that the Taylors’ counsel had miscalculated the deadline
for filing an opposition to Motorcars’ motion to dismiss because he was unfamiliar
with the local rules. Motorcars opposed the motion, arguing that the motion to
vacate did not meet the requirements of Civ.R. 60(B) and that the motion for
reconsideration was a “legal nullity.” The trial court denied the Taylors’ combined
motion.2
Motorcars filed an answer, denying the material allegations of the
complaint and asserting various affirmative defenses.
On August 9, 2018, Motorcars filed a motion for summary judgment
on the breach of contract claim. Motorcars argued that the Taylors could not prevail
on their breach of contract claim as a matter of law because: (1) the Taylors had not
suffered any economic damages given that all amounts paid by Eric Taylor pursuant
2 The Taylors have not assigned as error the trial court’s granting of Motorcars’
motion to dismiss or the trial court’s denial of its combined motion to vacate judgment,
motion for reconsideration and motion for leave to file an opposition to Motorcars’
motion to dismiss instanter in this appeal.
to the lease agreement were returned by Motorcars; (2) a plaintiff cannot recover
emotional distress damages on a breach of contract claim under Ohio law and (3)
Marcia Taylor and the Taylors’ daughter were not parties to the lease agreement and,
therefore, lack standing to assert a claim for breach of contract. In support of its
motion, Motorcars submitted an affidavit from Brian Zent, manager and custodian
of records for Motorcars. In his affidavit, Zent stated that, due to “an administrative
error,” Motorcars had placed an incorrect temporary license plate on the vehicle
leased by Eric Taylor; that sometime between October 9 and October 12, 2017, Eric
Taylor returned the leased vehicle to Motorcars, Motorcars refunded all the money
Eric Taylor paid pursuant to the lease agreement and the parties mutually
terminated the lease agreement and that a true and accurate copy of the lease
agreement was attached to the affidavit.
The Taylors opposed the motion. They argued that (1) there was a
genuine issue of material fact as to whether Marcia Taylor and the Taylors’ daughter
were intended third-party beneficiaries of the lease agreement who were entitled to
sue Motorcars for its alleged “lack of performance” under the agreement and (2)
emotional distress damages are recoverable for breach of contract under Ohio law.3
In support of their opposition, they attached affidavits from Eric and Marcia Taylor.
In his affidavit, Eric Taylor avers:
3 We note that both the copy of the Taylors’ opposition to summary judgment that
is in the paper record and the copy of the document accessible through the court’s
electronic docket appear to be incomplete, missing one or more pages.
1. That I am one named plaintiff in the action caption [sic] Eric Taylor
vs Honda Motorcars Inc.
2. That on or about October 9, 2017 I leased with my wife a 2017 Honda
Accord to be used for the benefit of my family[.]
3. That as a direct disregard for the safety of my family the defendant
not only breached the contract but took intentional action and created
a situation placing my family in danger of foreseeable harm by law
enforcement agencies.
4. That my wife Marcia Taylor was a known and intended third-party
beneficiary of the contract between myself and Honda Motorcars LLC
[sic][.]
5. That the defendant, or the defendants [sic] agent or representative,
knew that the vehicle was being obtained for my wife’s principal mode
of transportation[.]
6. That as a result of the conduct of the defendant, as well as the breach
of its contract, my spouse Marcia Taylor as well as my minor daughter
had to seek medical attention for the emotional stress suffered by their
arrest and detention[.]
7. That to this day[,] I witness the effects of the injuries suffered by my
spouse Marcia Taylor as a result of her arrest and detention due to the
contract and actions of the defendant.
In her affidavit, Marcia Taylor avers:
1. That I am one named plaintiff in the action caption [sic] Eric Taylor
vs Honda Motorcars Inc.
2. That on or about October 9, 2017 I accompanied my husband Eric
Taylor to select and lease a 2017 Honda Accord to be used for the
benefit of my family[.]
3. That as a direct disregard for the safety of my family the defendant
not only breached the contract but took intentional action and created
a situation placing myself and my minor child in danger of foreseeable
harm by law enforcement agencies as we were arrested and detained
for our vehicle having been reported stolen by the Defendant[.]
4. That it was clear that I was the known and intended third-party
beneficiary of the contract between my husband and Honda Motorcars
Inc.
5. That the defendant, or the defendant’s agent or representative, knew
that the vehicle was being obtained for my principal mode of
transportation[.]
6. That as a result of the conduct of the defendant, as well as the breach
of its contract, I as well as my minor daughter had to seek medical
attention for the emotional stress suffered by their [sic] arrest and
detention[.]
7. That to this day[,] I witness the effects of the injuries suffered by
myself and my minor child as a result of our arrest and detention due
to the contract and actions of the defendant.
On October 16, 2018, the trial court granted Motorcars’ motion for
summary judgment, reasoning as follows:
Defendant has supported its motion with admissible evidence and
concise compelling legal arguments. Plaintiffs, by contrast, have not
come forward with competent, admissible evidence suggesting that
there is a genuine issue for trial. Defendant’s motion for summary
judgment is well taken and is therefore granted.
The Taylors appealed, raising the following assignment of error for
review:
The trial court erred by granting appellee’s motion for summary
judgment despite the existence of genuine issues of material fact that
reasonable minds could come to more than one conclusion that is not
adverse to the appellant-plaintiffs.
Law and Analysis
Standard of Review
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct
an independent review of the record to determine whether summary judgment is
appropriate.
Under Civ.R. 56, summary judgment is appropriate when no genuine
issue exists as to any material fact and, viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is
adverse to the nonmoving party, entitling the moving party to judgment as a matter
of law.
On a motion for summary judgment, the moving party carries an
initial burden of identifying specific facts in the record that demonstrate his or her
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary
judgment is not appropriate; if the moving party meets this burden, the nonmoving
party has the reciprocal burden to point to evidence of specific facts in the record
demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.
Summary judgment is appropriate if the nonmoving party fails to meet this burden.
Id.
The Taylors contend that the trial court erred in granting Motorcars’
motion for summary judgment on their breach of contract claim because: (1) there
is a genuine issue of material fact as to whether Marcia Taylor and the Taylors’ minor
daughter were intended third-party beneficiaries of the lease agreement entitled to
sue Motorcars for its breach of the lease agreement and (2) the Taylors had
sustained “both emotional distress and expectations damages” as a result of
Motorcars’ breach of contract.
Intended Third-Party Beneficiaries
Only an intended third-party beneficiary has enforceable rights under
a contract to which he or she is not a party; an incidental third-party beneficiary
does not. TRINOVA Corp. v. Pilkington Bros., P.L.C., 70 Ohio St.3d 271, 277, 638
N.E.2d 572 (1994); see also Grant Thornton v. Windsor House, Inc., 57 Ohio St.3d
158, 161, 566 N.E.2d 1220 (1991) (“Only a party to a contract or an intended third-
party beneficiary of a contract may bring an action on a contract in Ohio.”). In Hill
v. Sonitrol of S.W. Ohio, Inc., 36 Ohio St.3d 36, 40, 521 N.E.2d 780 (1988), the Ohio
Supreme Court adopted Section 302 of the Restatement of the Law 2d, Contracts
(1981), regarding intended and incidental third-party beneficiaries. That section
provides:
(1) Unless otherwise agreed between promisor and promisee, a
beneficiary of a promise is an intended beneficiary if recognition of a
right to performance in the beneficiary is appropriate to effectuate the
intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary; or
(b) the circumstances indicate that the promisee intends to give the
beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.
Id. at 439-440. Comment e to Section 302 states:
Performance of a contract will often benefit a third person. But unless
the third person is an intended beneficiary as here defined, no duty to
him is created. * * *
Id.
For a third party to be an intended beneficiary of a contract under
Ohio law, “there must be evidence that the contract was intended to directly benefit
that third party.” Huff v. FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083,
957 N.E.2d 3, ¶ 12; see also Koster v. Mohammed Chowdhury, 8th Dist. Cuyahoga
No. 103489, 2016-Ohio-5704, ¶ 8 (“In order for a third person to enforce a promise
made for that person’s benefit, it must appear that the contract was made and
entered into directly or primarily for the benefit of such third person.”).
Ohio courts apply an “intent to benefit” test in determining whether
a third party is an intended or incidental beneficiary:
“Under this analysis, if the promisee * * * intends that a third party
should benefit from the contract, then that third party is an ‘intended
beneficiary’ who has enforceable rights under the contract. If the
promisee has no intent to benefit a third party, then any third-party
beneficiary to the contract is merely an ‘incidental beneficiary,’ who has
no enforceable rights under the contract.
* * * [T]he mere conferring of some benefit on the supposed beneficiary
by the performance of a particular promise in a contract [is]
insufficient; rather, the performance of that promise must also satisfy
a duty owed by the promisee to the beneficiary.”
Hill at 40, quoting Norfolk & Western Co. v. United States, 641 F.2d 1201, 1208 (6th
Cir.1980); see also TRINOVA at 277-278 (Under the intent-to-benefit test, “there
must be evidence, on the part of the promisee, that he intended to directly benefit a
third party, and not simply that some incidental benefit was conferred on an
unrelated party by the promisee’s actions under the contract. There must be
evidence that the promisee assumed a duty to the third party.”).
“Generally, the parties’ intention to benefit a third party will be found
in the language of the agreement.” Huff at ¶ 12, 22 (“[F]or an injured third party to
qualify as an intended third-party beneficiary under a written contract, the contract
must indicate an intention to benefit that third party.”); see also Meinert Plumbing
v. Warner Indus., 2017-Ohio-8863, 90 N.E.3d 966, ¶ 54 (8th Dist.). Although there
is no requirement that the intended third-party beneficiary be expressly identified
in the contract, the contract must be shown to have been made and entered into with
the intent to benefit that individual. See, e.g., Heintschel v. Montgomery, 6th Dist.
Lucas No. L-10-1060, 2010-Ohio-6519, ¶ 30; Bungard v. Dept. of Job & Family
Servs., 10th Dist. Franklin No. 07AP-447, 2007-Ohio-6280, ¶ 23.
The Taylors claim that Marcia Taylor and the Taylors’ minor daughter
were third-party beneficiaries of the lease agreement because Eric Taylor leased the
vehicle for their use. In their brief, they contend that they met their burden under
Civ.R. 56 — and showed the existence of “an overwhelming and genuine material
issue of fact” as to whether they were intended third-party beneficiaries of the lease
agreement — based on their assertions “that they had advised the Defendant
employee that the vehicle was for the use of Mrs. Taylor as the family vehicle and
the fact that Mrs. Taylor was intimately involved in the process of selection and
ultimate purchase [sic] of this vehicle.”
The only evidence the Taylors offered in support of their breach of
contract claim was the affidavits they attached to their opposition to Motorcars’
motion for summary judgment. Neither of these affidavits sets forth any facts
regarding the purpose for which the vehicle was being leased, any statements made
to Motorcars regarding the purpose for which the vehicle was being leased, any facts
suggesting that Marcia Taylor was “intimately involved in the process of selection”
or the “ultimate purchase of this vehicle” or any other facts indicating that the lease
agreement was made and entered into with the direct or primary intent to benefit
Marcia Taylor and the Taylors’ minor daughter. As detailed above, the Taylors
simply averred in their affidavits that Marcia Taylor was “a known and intended
third-party beneficiary” of the lease agreement and that Motorcars or its agent or
representative “knew that the vehicle was being obtained for [Marcia Taylor’s]
principal mode of transportation” — without any explanation or reference to any
underlying, supporting facts.
An affidavit submitted on summary judgment must contain more
than general, conclusory assertions to create a genuine issue of material fact for trial:
‘“Generally, a party’s unsupported and self-serving assertions, offered
by way of affidavit, standing alone and without corroborating materials
under Civ.R. 56, will not be sufficient to demonstrate material issues of
fact. Otherwise, a party could avoid summary judgment under all
circumstances solely by simply submitting such a self-serving affidavit
containing nothing more than bare contradictions of the evidence
offered by the moving party.’”
Jochum v. Listati, 8th Dist. Cuyahoga No. 106957, 2019-Ohio-166, ¶ 19, quoting
Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621, ¶ 23, quoting
Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88, ¶ 33.
Accordingly, the Taylors’ affidavits are insufficient to create a genuine issue of
material fact as to whether Marcia Taylor and the Taylors’ minor child were intended
third-party beneficiaries entitled to recover for breach of the lease agreement.
Even if the Taylors’ affidavits were sufficient to meet their burden
under Civ.R. 56, and demonstrated the existence of a genuine issue of fact regarding
Marcia Taylor and her daughter’s status as intended third-party beneficiaries of the
lease agreement, we would still find that the trial court properly entered summary
judgment in favor of Motorcars on their breach of contract claim because the Taylors
have not offered any evidence showing that they sustained any recoverable damages
as a result of Motorcars’ alleged breach of contract.
Damages for Breach of Contract
The Taylors also contend that the trial court erred in granting
Motorcars’ motion for summary judgment because they sustained emotional
distress and “expectation damages” as a result of Motorcars’ breach of contract, both
of which they contend are recoverable on a breach of contract claim under Ohio law.
Turning first to the Taylors’ claim that they are entitled to recover
damages for their alleged emotional distress arising from Motorcars’ breach of
contract, we note that “Ohio recognizes a closely-circumscribed set of contractual
breaches from which damages for emotional distress may * * * be recovered.” Clay
v. Shriver Allison Courtley Co., 7th Dist. Mahoning No. 17 MA 0003, 2018-Ohio-
5406, ¶ 20. Under Ohio law, emotional distress damages are not generally allowed
for a breach of contract. A plaintiff can recover damages for emotional distress on a
breach of contract claim only if (1) the breach of contract also caused bodily harm or
(2) “the contract or the breach is of such a type that serious emotional disturbance
was a particularly likely result.” Kishmarton v. William Bailey Constr., Inc., 93
Ohio St.3d 226, 754 N.E.2d 785 (2001), paragraph two of the syllabus; see also Allen
v. Lee, 43 Ohio App.3d 31, 34, 538 N.E.2d 1073 (8th Dist.1987); Brown Deer
Restaurant v. New Market Corp., 8th Dist. Cuyahoga No. 48910, 1985 Ohio App.
LEXIS 7533, 16 (Mar. 28, 1985); Watershed Mgmt., L.L.C. v. Neff, 4th Dist.
Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 46; Powell v. Grant Med. Ctr., 148 Ohio
App.3d 1, 10-11, 771 N.E.2d 874 (10th Dist.2002).
In Kishmarton, upon which the Taylors rely, the Ohio Supreme Court
considered whether emotional distress damages were recoverable in a breach of
contract action by a vendee against a builder-vendor. Kishmarton at 230. The court
adopted Section 353 of the Restatement of the Law 2d, Contracts (1981), and held
that
[w]hen [a] vendee’s claim for breach of an implied duty to construct a
house in a workmanlike manner is successful, recovery for emotional
distress damages will be excluded unless the breach also caused bodily
harm or the contract or the breach is of such a kind that serious
emotional distress was a particularly likely result.
Id. at paragraph two of the syllabus. In that case, the court reversed an award of
$19,000 for loss of enjoyment, annoyance and discomfort and held that, on the
record before the court, it was “not possible for [the plaintiffs] to establish damages
pursuant to Section 353.” Id. at 230.
With respect to identifying what contracts are “of such a type that
serious emotional disturbance [may be] a particularly likely result” of a breach,
Comment a to Section 353 of the Restatement of the Law 2d, Contracts, states:
Common examples are contracts of carriers and innkeepers with
passengers and guests, contracts for the carriage or proper disposition
of dead bodies, and contracts for the delivery of messages concerning
death. Breach of such a contract is particularly likely to cause serious
emotional disturbance. Breach of other types of contracts, resulting for
example in sudden impoverishment or bankruptcy, may by chance
cause even more severe emotional disturbance, but, if the contract is
not one where this was a particularly likely risk, there is no recovery for
such disturbance.
3 Restatement of the Law 2d, Contracts, Comment a (1981); see also Brown Deer
Restaurant, 1985 Ohio App. LEXIS 7533, at 16 (“Contracts involving funeral
services, the communication of critical messages, and other emotionally charged
activities may justify damages for an emotional response to a breach. * * * An
emotional response may be within the parties’ reasonable expectations from a
material breach of such contracts.”).
The lease agreement in this case does not meet any of the recognized
exceptions that would allow the Taylors to recover for emotional distress arising
from a breach of contract. The Taylors do not claim that they suffered any bodily
harm as a result of Motorcars’ alleged breach of the lease agreement. The lease
agreement was not “personal in nature” or otherwise of “such a type that serious
emotional disturbance was a particularly likely result” of a breach of the lease
agreement. Compare Stockdale v. Baba, 153 Ohio App.3d 712, 2003-Ohio-4366,
795 N.E.2d 727, ¶ 105 (10th Dist.) (emotional distress damages recoverable for
breach of settlement agreement based on stalking charges), with Allen v. Lee, 43
Ohio App.3d 31, 34, 538 N.E.2d 1073 (8th Dist.1987) (residential lease “lacks that
special emotional significance” required to recover emotional distress damages for
breach of contract). The Taylors have not pointed to any authority supporting the
recovery of emotional distress damages on a breach of contract claim under similar
circumstances.
The Taylors also contend that the trial court improperly granted
Motorcars’ motion for summary judgment because they sustained “expectation
damages” as well as emotional distress damages on their breach of contract claim.
They assert that the trial court erred in granting summary judgment because, at the
summary judgment stage, “the issue is [n]ot the amount of recovery but is whether
there is recovery allowed under the law.”
However, simply because there are other forms of damages a plaintiff
could potentially recover for breach of contract does not mean the Taylors are
entitled to recover such damages for the alleged breach of the lease agreement in
this case. The Taylors do not identify or describe their alleged “expectation
damages” in their brief. The Taylors made no argument below that they had
sustained any damages other than emotional distress damages as a result of
Motorcars’ breach of contract and produced no evidence of any such damages in
their opposition to Motorcars’ motion for summary judgment. An appellant cannot
raise for the first time on appeal arguments he or she failed to raise in the trial court
below. See, e.g., Bank of Am., N.A. v. Michko, 8th Dist. Cuyahoga No. 101513, 2015-
Ohio-3137, ¶ 28. Furthermore, there is no evidence in this case that the Taylors, in
fact, sustained any such damages. The Taylors’ affidavits contain no reference to
any damages or injury other than emotional distress.
Following a thorough, independent review of the record, viewing the
evidence in the light most favorable to the Taylors, we conclude that the trial court
properly granted summary judgment in favor of Motorcars on the Taylors’ breach of
contract claim. Motorcars met its burden under Civ.R. 56(C), presenting evidence
of specific facts in the record demonstrating its entitlement to summary judgment.
The Taylors, however, failed to meet their reciprocal burden to put forth evidence of
specific facts demonstrating the existence of a genuine issue of material fact for trial.
Judgment affirmed.
It is ordered that appellee recover from appellants the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY