[Cite as Sims v. Haghighi , 2020-Ohio-732.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

TEMIKA SIMS, : O P I N I O N Plaintiff-Appellant, : CASE NO. 2018-P-0037 - vs - : DAVOOD HAGHIGHI d.b.a. AUTO SITE, : Defendant-Appellee. :

Civil Appeal from the Portage County Court of Common Pleas, Cas e No. 2015 CV 00569.

Jud g ment: Affirmed in part; reversed and remanded in part.

David J. Truman , Truman Law, LLC, 6100 Oak Tree Boulevard, Suite 200, Independence, OH 44131, and Jesse M. Gannon , The Law Offices of Jesse M. Gannon, LLC, 1801 Euclid Avenue, Suite 095, Cleveland, OH 44115 ( For Plaintiff-Appellant )

. Mark H. Ludwig , Law Office of Mark H. Ludwig, LLC, 344 Stouffer Road, Fairlaw n, OH 44333 ( For Defendant-Appellee )

.

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, Temika Sims, appeals the trial court’s summary judgm ent ruling in favor of appellee, Davood Haghighi, on appellant’s claims an d his counterclaims. We affirm summary judgment in appellee’s favor on appellant’s clai ms but reverse and remand on appellee’s two remaining counterclaims. {¶2} Appellee owns and operates Auto Site, a used car dealership, in Portage2 County, Ohio. In February 2014, appellee sold appellant a use d 2009 Mazda CX7 for $21,451.04. Appellant paid a portion and financed the remainde r. The agreement provides an “AS-IS” clause but also includes a 30-day limited w arranty for 50 percent of all labor and parts covered. {¶3} Appellee has always employed at least one mechanic. Before app ellant took possession of the car, a staff mechanic checked it for any obvious problems. None were found, and none developed during the limited warranty peri od. {¶4} In early September 2014, the car began making a loud knocking s ound. Appellant’s boyfriend took the car to a local Mazda dealership that determined it needed a new timing chain. A ppellant contacted appellee, who told her to bring the car in f or his

mechanic to look at it. {¶5} The parties disagree as to what took place over the ensuing fiv e months. According to appellant, appellee promised that he would fix the vehicle at no cost. During this period, appellee provided appellant with vehicles to use a t no cost. When repairs were not completed by January 2015, appellant stopped making pa yments. {¶6} Appellee asserts he did not promise to repair the Mazda for fre e but merely offered to inspect the vehicle to assess whether it could be fi xed for less. Appellee informed appellant that he was unable to repair it and gave her the rental cars to use while she was deciding whether to get the car fixed elsewhere o r buy another used

vehicle. {¶7} By July 2015, appellee neither returned nor repaired the Mazda, prompting appellant to file a complaint asserting Ohio Consumer Sales Pra ctices Act (CSPA) violations, among others. All her claims are based upon appell ee’s failure to repair the3 car. Appellee asserted three counterclaims, including enforcem ent of a lien on the Mazda, breach of contract, and compensation for damage to a ren tal car. The parties filed competing motions for summary judgment. And the trial co urt subsequently granted summary judgment in appellee’s favor on all of appellant’s clai ms because viewing the evidence in a manner most favorable to appellant, appellee is n ot an auto repair supplier. {¶8} The trial court also granted summary judgment on appellee’s fir st two

counterclaims for breach of contract and to enforce the lien an d awarded damages. On the remaining counterclaim for rental car damage, the court gra nted summary judgment on liability only and scheduled a damages hearing. Appellee th en voluntarily dismissed this counterclaim with prejudice before damages were determined . The trial court then issued a stipulated final order restating its decision and ente ring judgment in appellee’s favor for $14,511. {¶9} Appellant assigns the following as error: {¶10} “[1.] The trial court erred in granting defendant-appellee’s mo tion for summary judgment on plaintiff-appellant’s Ohio Consumer Sales P ractices Act claim based upon its opinion that defendant-appellee was not subject to the Act. {¶11} “[2.] The trial court erred in granting defendant-appellee’s mo tion for summary judgment on its counterclaim for breach of the Mazda co ntract where genuine

issues of fact remain as to Sims’ claims and defenses under the Consumer Sales

Practices Act. {¶12} “[3.] The trial court erred by awarding defendant-appellee its full expectation damages without considering its duty to mitigate its damages.” {¶13} Appellant’s first assignment contends that summary judgment was improper4 because there is a factual dispute concerning whether appellee is a supplier of auto repairs under the CSPA. We disagree. {¶14} “‘In reviewing an award of summary judgment, we apply a de novo standard of review. (* * *). As such, summary judgment is appropriate when: (1) there is no genuine issue as to any material fact; (2) the [moving] party is entitl ed to judgment as a matter of law; and (3) reasonable minds can come but to one conclusion, a nd that conclusion is adverse to the non-moving party, who is entitled to have the ev idence construed most strongly in her favor. (* * *).’ (Citations omitted.) Arp v. Geauga Cty. Commrs. , 11th Dist. No. 2002-G-2474, 2003-Ohio-2837, ¶ 21.” Silvey v. Washington Square Chiropractic Clinic , 11th Dist. Geauga No. 2011-G-3047, 2012-Ohio-6214, ¶ 20. {¶15} “The purpose of summary judgment is not to try issues of fact, but to

determine whether triable issues of fact exist. McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 242-243, 659 N.E.2d 317. Not only is it t he duty of the court to closely scrutinize the evidence in favor of the movant, but it must view it, as well as any inferences which may be made from that evidence, in the most fa vorable light to the opposing party. Allstate Ins. Co. v. Baileys (N.D.Ohio 1958), 192 F.Supp. 595, 596. ‘A summary judgment should not be granted where the facts although not in dispute are subject to conflicting inference.’ Cottrelll v. Mayfield (May 1, 1987), 11th Dist. No. 1730, 1987 Ohio App. LEXIS 6623, *3, citing 73 American Jurisprudence 2d (1974), Summary Judgment, Section 27.” Gay v. G.F. Mossberg & Sons, Inc. , 11th Dist. Portage No. 2008- P-0006, 2009-Ohio-2954, ¶ 153 (Concurring Opinion of Trapp, J.)

. {¶16} R.C. 1345.02(A) prohibits the use of unfair or deceptive behavi or in consumer transactions: “No supplier shall commit an unfair or deceptive act or practice5 in connection with a consumer transaction. Such an unfair or d eceptive act or practice by a supplier violates this section whether it occurs before, d uring, or after the

transaction.” {¶17} “Supplier” is defined as “a seller, lessor, assignor, franchiso r, or other person engaged in the business of effecting or soliciting consu mer transactions, whether or not the person deals directly with the consumer.” R.C. 1345 .01(C). {¶18} “‘The phrase “engage in the business of” is commonly used in st atutory schemes and has generally been held to connote continuous or re gular activity, rather than a singular or isolated sale. See United States v. Tarr , 589 F.2d 55 (1st Cir.1978) (the words “to engage in the business of” strongly imply more t han one isolated sale or transaction); Fillippo v. S. Bonaccurso & Sons, Inc. , 466 F.Supp. 1008 (E.D. Pa. 1978) (“being engaged in an activity requires more than a single act or transaction or occasional participation”); UFI-TEC, S.A. v. Carter , 20 Cal.3d 238, 571 P.2d 990, 142 Cal.Rptr 279 (1977) (the phrase “engaged in the business of” connotes a cert ain regularity of participation).’” LaVeck v. Al’s Mustang Stable , 73 Ohio App.3d 700, 703, 598 N.E.2d 154 (11th Dist.1991), quoting Moore v. Florida Bank of Commerce , 654 F.Supp. 38, 41, (S.D.Ohio 1986). {¶19} In moving for summary judgment on appellant’s CSPA claim, appel lee argues he is not a supplier of auto repairs because he does not regularly engage in that type of business. In support, appellee references his depositi on testimony in which he states that his mechanic did not perform the type of repairs th at appellant’s Mazda needed; rather, “[h]e just does the minor repairs for the cars under warranty.” In response to a query as to whether the timing chain on the Mazda was ever fixed, appellee stated:6 “No. We don’t do that kind of work.” {¶20} To this extent, appellee presented evidence that his offer to a ttempt to repair the Mazda was an isolated event. Appellant presents no evidenc e to the contrary that there were other instances when appellee repaired cars that eit her were no longer under warranty or not purchased at Auto Site. {¶21} Appellant failed to present evidence that appellee repairs ca rs outside of warranty as a continuous or regular activity. Therefore, summa ry judgment was proper. {¶22} Separately, appellant contends that even if appellee is not an automobile repair supplier, summary judgment was improper because appellee ’s promise to repair the Mazda was a continuation of the original sale and appellee is a car supplier. {¶23} However, appellant’s CSPA claim is predicated solely on appelle e’s promise to repair the car. Furthermore, the sale and repair we re two distinct transactions, not a continuation of the sale. The limited 30-day warranty had expired, and appellee had no duty under the sales agreement to repair the vehicle. Conse quently, the factual disputes are immaterial. Appe llant’s first assignment lacks me rit. {¶24} Appellant’s second assignment asserts the trial court erred in awarding summary judgment in appellees’ favor on his counterclaims for b reach of contract and enforcement of lien. She first argues that there is a factual i ssue whether appellee is a supplier of auto repairs under the CSPA and if he is, this cons titutes an affirmative defense. Given our holding under the first assignment, however , her argument likewise fails because appellant did not produce evidence that appellee is a supplier of auto repairs. {¶25} Second, appellant does not dispute that she was in breach of th e sales7 agreement. Instead, she asserts that she is not liable for dam ages because appellee kept the car even after it became evident that repairs would no t be completed. She acknowledges, however, that she never asked him to return it. Regardless, she fails to show how this forgives her performance under the sales agreemen t. App.R. 16(A)(7). {¶26} Finally, appellant contends that summary judgment was improper because appellee did not have a valid dealer license when he sold her t he car. Her attorney’s affidavit, offered in opposition to appellee’s motion for summa ry judgment, states that a search of the Ohio Secretary of State website confirms that the articles of incorporation for Auto Site, Inc., were canceled in April 2011 and never rene wed. Second, counsel avers that in searching the online database for dealer licensin g, he could only confirm the issuance of a dealer license to Auto Site, Inc., and not to app ellee as a sole proprietor. This affidavit raises a question of fact regarding whether appe llee had a valid license to sell vehicles when he sold appellant the Mazda. {¶27} As stated, R.C. 1345.02(A) forbids the commission of an unfair and deceptive act or practice by a supplier in a consumer transacti on. Division (B) of R.C. 1345.02 identifies ten acts or practices considered to be unfai r and deceptive. The lack of a license is not included, however, the list in division (B) is not exhaustive. {¶28} When appellee sold the vehicle to appellee, the Ohio Administra tive Code provided that “[i]t shall be a deceptive and unfair act or prac tice for a dealer, * * * in connection with the * * * sale of a motor vehicle, to: * * * Se ll, offer for sale, or assist in the sale of more than five motor vehicles in any twelve month p eriod, at retail, without being licensed as a dealer or salesperson pursuant to Chapter 4 517 of the Revised Code, or otherwise being licensed pursuant to applicable law.” Ohio Adm-Code 109:4-3-8 16(B)(32). {¶29} Under this provision, if appellee did not possess a valid dealer license at the time of the sale, he engaged in an unfair and deceptive act, an d appellant would be entitled to rescission of the sales agreement, a complete defen se to appellee’s breach of contract counterclaim. R.C. 1345.09(A) (“Where the violation w as an act prohibited by section 1345.02 * * *, the consumer may, in an individual actio n, rescind the transaction * * *.”). {¶30} Thus, summary judgment was not warranted on appellee’s breach o f contract counterclaim because appellant raised a genuine issue of material fact regarding her affirmative defense. In the absence of a valid judgment fo r breach of contract, summary judgment was also improper on appellee’s counterclaim t o enforce the lien. Her second assignment has merit. {¶31} Under her final assignment, appellant argues the trial court fa iled to consider whether appellee mitigated damages. Appellant admits she did not present this argument to the trial court. Nevertheless, she contends that w e can address the point

because our standard of review is de novo. {¶32} However, the failure to mitigate damages is an affirmative defe nse. First Fin. Bank, N.A. v. Cooper , 1st Dist. Hamilton No. C-150664, 2016-Ohio-3523, 67 N.E.3d 140, ¶ 23. Thus, appellant had the burden to produce evidence, which she did not do.

Id. Moreover, her failure to raise this issue in her motion depri ved appellee a meaningful opportunity to respond. Mitseff v. Wheeler , 38 Ohio St.3d 112, 526 N.E.2d 798 (1988). Thus, appellant’s third assignment also lacks merit. However, because of our reversal on the breach of contract counterclaim, appellant is not preclu ded from raising this9 defense on remand. {¶33} The trial court’s decision is affirmed in part and reversed and remanded in part. We affirm the award of summary judgment in appellee’s fa vor on appellant’s claims for relief, but we reverse summary judgment on appellee’s count erclaims for breach of contract and enforcement of a lien and remand for further proce edings consistent with this opinion.

TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J.,

concur.