[Cite as Whitson v. Dixie Imports, Inc. , 2020-Ohio-1549.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

DELLA WHITSON, et al., Appellees,

- vs -

DIXIE IMPORTS, INC., Appellant. :

:

:

:

:

: CASE NO. CA2019-09-157

O P I N I O N

4/20/2020

CIVIL APPEAL FROM FAIR FIELD MUNICIPAL COURT Case No. 2018SCI089

Della Whitson, Deshanna Whitson, 11527 Framingham Drive, Cincin nati, Ohio 45240, pro se Richard L. Hurchanik, 110 North Third Street, Hamilton, Ohio 45 011, for appellant

RINGLAND, J. {¶1} Defendant, Dixie Imports, Inc. ("Dixie"), appeals from the deci sion of the Fairfield Municipal Court, Small Claims Division, which granted a $6,000 judgment to plaintiffs, Della and Deshanna Whitson. For the reasons descri bed below, this court affirms

the small claims court's decision. {¶2} In December 2018, Della and her daughter Deshanna, filed a comp laintButler CA2019-09-157

- 2 - against Dixie for the jurisdictional maximum damage amount of $ 6,000. The Whitsons' complaint stemmed from their purchase of a used vehicle from Di xie, a car dealership in Fairfield, Ohio. The complaint alleged that the vehicle's moto r had seized and that a vehicle diagnostic examination revealed that it had never been serviced

. {¶3} The matter proceeded to a two-day hearing before a magistrate. Della testified that she and Deshanna visited Dixie's lot in May 2018 with the intent of purchasing a vehicle for Deshanna. They were at the lot for several hours and test drove several vehicles. Ultimately, they did not find a vehicle they were in terested in purchasing. As they were leaving, Earl Burns, the dealership manager, approached th em and asked if they would be interested in looking at a vehicle that the Whitsons s aid was not "marked" for sale. {¶4} The vehicle was a 2011 Chevrolet Malibu with over 114,000 miles

. 1 The Whitsons test drove the vehicle and ultimately agreed to purcha se it for $15,741.20 plus the costs of financing. The price included $1,686 for a "service co ntract." In addition, Dixie provided the Whitsons with a "We Owe" document, listing some mi nor repairs that Dixie agreed to make to the Malibu within 30 days. The repairs inclu ded fixing a door panel, a trunk release mechanism, and a vent cover. {¶5} The Whitsons introduced a copy of a "retail purchase agreement" which listed the vehicle and the total agreed sale price. In inconspicuous font, a section of the purchase agreement contained preprinted language stating that the vehicl e was being sold "as-is" and disclaimed any warranties in conjunction with the sale. Th e purchase agreement also

contained a list of other items included in the sale and their cost. Among these items was the aforementioned "service contract." The purchase agreement reflected that the Whitsons made a down payment of $5,000.

1. Della Whitson claimed that the vehicle registered 118,000 m iles when they purchased it. The purchase paperwork indicates the vehicle was sold with 114,148 miles.Butler CA2019-09-157

- 3 - {¶6} Approximately one week after the purchase, the Malibu would not start. Della contacted a Dixie salesperson and reported the issue and asked for the vehicle to be towed to Dixie. Della also informed the salesperson that no one from Dixie had contacted them about repairing the "We Owe" items. In response, the salespers on asked if the Whitsons had purchased a warranty with the vehicle. Later, the salesper son stated that Dixie was only obligated to fix items on the "We Owe" list. {¶7} Approximately one week later, Della's husband swapped a battery into the Malibu and was able to start the engine. He and Della then dro ve the vehicle to Dixie's lot. A confrontation ensued at the lot, which Della video recorded. During the argument, Earl

Burns took Della's husband aside and told him that he had fired Dixie's service manager.

Della further claimed that Burns admitted that the vehicle had never been serviced and he apologized. He promised to make the matter right and fix the v ehicle. {¶8} The Whitsons left the Malibu at the Dixie lot, where it remaine d for a week.

When the Whitsons retrieved the v ehicle, Dixie had replaced the battery and fixed some of

the items on the "We Owe" list. {¶9} Deshanna thereafter drove the Malibu for approximately three mo nths. The Whitsons stated that they changed the oil in July. The vehicle drove without issue until late September, when it stopped operating at 122,240 miles. The veh icle dashboard displayed a check engine light. The Whitsons contacted Dixie, who told t hem they needed to contact "Superior Insurance," the warranty company ("Superior"). {¶10} The Whitsons contacted Superior and were told that they would n eed to obtain a vehicle diagnostic. The Whitsons had the vehicle towed to a Firestone service center. Firestone refused to perform the diagnostic and told the Whitso ns to remove the vehicle

from their lot. The Whitsons then towed the vehicle to Jake Sw eeney Chevrolet. {¶11} Sweeney technicians performed a compression test, which reveale d noButler CA2019-09-157

- 4 - engine compression. After removing the camshaft cover, technic ians found that the engine had been severely neglected and that the oil was "harder than s ludge." Sweeney mechanics recommended engine replacement, replacement of the ba ttery, which was in a "weak" condition, and replacement tires. The total cost for r epairs was in excess of $13,000, with most of the cost allocated to the engine replacem ent. {¶12} A Sweeney employee informed a Superior adjuster that Sweeney co uld prove that the engine had not been serviced in over 20,000 miles. A Superior employee then

contacted Deshanna and informed her that Dixie had never servic ed the vehicle and therefore they would not honor the warranty. {¶13} Earl Burns testified for Dixie. He stated that the vehicle was sold "as-is" and he had replaced the battery as a courtesy. The only other repa irs Dixie promised were on the "We Owe" document. On cross-examination, when asked whethe r the vehicle had been serviced, Burns responded, "[w]e would service the vehicle, as far as oil changes and stuff

like that." {¶14} The Whitsons played the confrontation video for the court. Aft erwards, Burns

admitted that he had told the Whitsons that he fired his servic e manager but added that he would have told them "anything that they wanted to hear" to dif fuse the situation. Nonetheless, Burns confirmed that he had fired a service manage r two days before the

confrontation. {¶15} The magistrate later issued a written decision finding for the Whitsons. The court found that the Whitsons were hesitant to purchase the veh icle but that Burns promised them repairs and offered a service contract on the vehicle that would remedy any engine

issues without additional cost. The court found that the Whits ons had never received any paperwork on the service contract/warranty or a list of any exc lusions or conditions and that no exceptions were ever explained to them by Dixie. The court noted that the purchaseButler CA2019-09-157

- 5 - agreement indicated an "as-is" transaction but that this langua ge was negated by Dixie including a service contract in the sale. {¶16} The magistrate concluded that Dixie breached the purchase agree ment by including a service contract for which the Whitsons paid $1,686 but received no benefit.

The court further found that Dixie violated the Ohio Consumers Sales Practices Act in two ways: by representing that the vehicle was in a good condition despite having no knowledge of the condition of the vehicle or its history, and for chargin g the Whitsons for a service

contract that the Whitsons did not receive from either Dixie or Superior. 2 {¶17} The magistrate recommended a $6,000 judgment in favor of the Wh itsons. The magistrate noted that the Whitsons had expended incidental costs related to towing and diagnosing problems with the Malibu, that they had endured several months of inconveniences, and that the repairs would cost more than the v alue of the vehicle. Dixie objected, which objections were overruled by the court, which t hen adopted the magistrate's

decision in full. {¶18} Dixie appeals, raising five assignments of error. Each assignm ent of error contains multiple issues for review. Some of the assignments o f error and some of the issues presented are duplicative. For judicial economy, this c ourt will address some assignments of error collectively. {¶19} Assignment of Error No. 1: {¶20} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT/APPELLANT IN OVERRULING ITS OBJECTION TO THE MAGISTRA TE'S

DECISION AND ADOPTING SAID DECISION. {¶21} Assignment of Error No. 3:

2. Dixie does not assign error to the court's conclusion that it violated the Ohio Consumers Sales Practices Act.Butler CA2019-09-157

- 6 - {¶22} THE COURT AND THE MAGISTRATE ERRED WHEN THE MAGISTRATE

WROTE PLAINTIFF NEVER RECEIVED AN EXPLANATION OF THE INCLUSIONS , EXCLUSIONS, OR CONDITIONS OF THE WARRANTY OR WHAT WAS LABELED A S A

SERVICE CONTRACT IN EXHIBIT B. {¶23} Assignment of Error No. 4: {¶24} THE COURT ERRED WHEN IT FOUND THAT THE SALE OF A SERVICE

CONTRACT MADE THE TRANSACTION NOT AN "AS-IS" TRANSACTION. {¶25} This court reviews Dixie's arguments challenging the trial cour t's factual findings for some competent, credible evidence to support those findings. Morgan v. Ramby , 12th Dist. Warren Nos. CA2010-10-095 and CA2010-10-101, 2012- Ohio-763, ¶ 21. If there is competent, credible evidence to support the factual findings, this court reviews whether, after weighing the evidence and resolving evidentiary conflicts and issues of credibility, the trial court proper ly applied the governing law to those factual findings. Id

. This court reviews legal issues de novo. Ohio Dist. Council of the Assemblies of God v. Speelman , 12th Dist. Butler Nos. CA2018-02-025 and CA2018-02-031, 2018- Ohio-4388, ¶

18. {¶26} In its first, third, and fourth assignments of error, Dixie pre sents various arguments challenging the trial court's factual findings and le gal conclusions with respect to its finding that Dixie breached the parties' vehicle purchas e agreement. The finding that the purchase was not "as-is" and whether the Whitsons received the warranty documents {¶27} Dixie argues that the trial court's conclusion that the vehicle purchase transaction was not "as-is" was not supported by the evidence. Dixie contends that the existence of the warranty/service contract did not alter the "a s-is" nature of the transaction. Finally, Dixie argues that there was no evidence to support the court's finding that DixieButler CA2019-09-157

- 7 - assured the Whitsons that the warranty would cover any repairs. {¶28} Where a written contract is standardized and between parties of unequal bargaining power, an ambiguity in the writing will be interpret ed strictly against the drafter and in favor of the nondrafting party. Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, ¶ 13, citing Cent. Realty Co. v. Clutter , 62 Ohio St.2d 411, 413 (1980). And it is "generally the role of the finder of fact to resolve ambiguity." Id . Under the circumstances presented in this case, whether the transaction w as "as-is" was a factual determination for the small claims court. And competent and cr edible evidence supports

the conclusion that the transaction was not "as-is." {¶29} The purchase agreement, which is clearly a form prepared by Dix ie, contained preprinted language in inconspicuous font indicating that the p urchase of the vehicle was "as-is." However, the same document listed a "service contract " with a cost of $1,686. No other details concerning the service contract were described on the document. {¶30} The evidence established that the Whitsons were ready to leave Dixie's lot but that Burns induced them to purchase the Malibu with the pro mise to make repairs and sell them a warranty. The court credited the Whitsons' claim t hat Dixie did not provide them with documentation concerning the service contract or otherwise explain any limitations to the service contract. Deshanna testified that she had to reque st information from Dixie on how to have the vehicle repaired under the service contract bec ause she had no paperwork related to Superior. Deshanna further testified that it was Di xie that provided her with the policy number. {¶31} Dixie also argues that the Whitsons introduced four out of five pages of a copy of the warranty/service contract at the hearing, implying that their possession of a copy of part of the contract would cast doubt on their claim that they did not receive the warranty document at the time of the sale. However, it is just as conce ivable that the Whitsons'Butler CA2019-09-157

- 8 - obtained a copy of the contract at some later point, e.g., afte r Dixie provided Deshanna with Superior's contact information and the Whitsons' policy number. Consequently, this court finds no error in the trial court's conclusion that the agreeme nt between parties was not "asis" and that the Whitsons never received any documentation or i nformation concerning limitations on the warranty. Oil changes {¶32} In a series of supplemental issues, Dixie raises various argume nts concerning the evidence related to oil changes. Dixie's essential argumen t is that the Whitsons' testimony that they changed the vehicle's oil in July makes it unlikely that Dixie "did anything to cause the warranty to be void." However, Dixie presented no evidence that would suggest that Whitsons' July oil change had any effect on the co ndition of the vehicle if it had been severely neglected prior to the oil change. {¶33} The evidence before the court as to the engine condition was ba sed upon a physical examination by vehicle technicians hired by the Whitso ns. The Malibu's engine was found to have been severely neglected and the technicians o pined that the engine had not been serviced well before the Whitsons purchased it from Di xie. The court credited the

Whitsons' claim that Burns admitted the vehicle had not been se rviced and obviously discredited his generic trial testimony that the vehicle would have been serviced in the ordinary course. {¶34} Burns corroborated the Whitsons' claims through his statement o n the video that he had fired a service manager. He additionally told the court that he had fired the service manager because he "wasn't doing the job I needed him t o do." The Whitsons observed that the vehicle had not yet been marked for sale and had the need for several minor repairs, thus implying it may have been a new vehicle on the lot. Thus, competent and credible evidence supports the conclusion that Dixie sold t he vehicle without knowingButler CA2019-09-157

- 9 - its condition because it had not serviced the vehicle. Mileage {¶35} Dixie states that the mileage between the sale date and the dat e the vehicle was examined at Jake Sweeney Chevrolet was 8,074 miles. Dixie further states that "no reasonable mind would believe any engine could be driven 20,000 miles without an oil change or service." Dixie does not articulate what argument it is making here but assumedly Dixie is implying that the "severe neglect" occurred to the veh icle while it was in the Whitsons' care. However, there was no evidence before the cour t that would indicate the Whitsons caused the neglect. 3 As described previously, the only evidence before the court was that the car had been severely neglected before it was sold to the Whitsons. Identity of the warranty company {¶36} Dixie next argues that the Whitsons, at trial, referred to the warranty company as "Superior" when certain purchase documents stated that Super ior was "First Automotive Service Corporation." Dixie does not articulate how the court erred with respect to this issue, or how it is relevant to the court's conclusion that Dix ie breached the agreement. This court assumes that Dixie is pointing out an inconsistency in the Whitsons' testimony. However, Dixie's witness, Earl Burns, explained at trial that " Superior" referred to the type of warranty sold by First Automotive Service Corporation. The Whitsons' contact with Superior {¶37} Dixie contends that the court erred when it found that the Whit sons never had any contact with Superior. Again, this finding is irrelevant t o the court's conclusion that Dixie

3. The trial was continued to a second day to allow for the pr esentation of the video of the confrontation, which Della was unprepared to present to the court on the first day of trial. At the second hearing, Dixie brought a witness who would purportedly testify generally as to known issues with the Chevrolet engine. The magistrate disallowed the presentation of any additional eviden ce other than the video. Dixie then proffered a letter written by the witness. The letter indicated that thi s type of engine should have had an oil change every 4,000 miles and that driving 8,000 miles without an oil c hange could have resulted in oil sludge. Dixie did not assign error to the exclusion of this evidence.Butler CA2019-09-157

- 10 - breached the agreement. Regardless, the trial court specifical ly found that the Whitsons never had any "successful" contact with Superior. The court wa s referring to the Whitsons' attempts to obtain warranty coverage for the engine issue. Whether Dixie voided the warranty {¶38} Dixie argues that the court erred when it stated that an issue in the case was whether Dixie voided the warranty. However, as discussed previ ously, there was evidence in the record to suggest that the warranty claim was denied bec ause the vehicle had been sold without being serviced by Dixie. This court concludes tha t competent and credible evidence supports the small claims court's conclusion that Dixi e breached the purchase agreement and therefore overrules Dixie's first, third, and fou rth assignments of error. {¶39} Assignment of Error No. 2: {¶40} THE COURT AND MAGISTRATE ERRED WHEN THE MAGISTRATE

WROTE "PLAINTIFF STATES SHE WAS HESITANT BUT MR. BURNS PROMISED

REPAIRS AND OFFERED A SERVICE CONTRACT WARRANTY." {¶41} Dixie challenges the court's conclusion that the Whitsons were hesitant to buy a vehicle and so in order to induce them to enter into the purc hase agreement, Dixie represented that it would make repairs and would offer a warran ty. Dixie argues that there was no evidence presented that the Whitsons were hesitant. Thi s argument is meritless.

Della testified that – at the end of hours on Dixie's lot and m ultiple test drives – "we hesitated." That Burns promised repairs was established by the "We Owe" document. That he offered a warranty was established by the purchase agreement . Regardless, whether the Whitsons were hesitant to purchase the vehicle or not is ul timately irrelevant to whether Dixie breached the agreement. This court overrules Dixie's sec ond assignment of error. {¶42} Assignment of Error No. 5: {¶43} THE COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY NOTButler CA2019-09-157

- 11 - REALIZING THE PLAINTIFFS' CLAIMS WERE AGAINST THE THIRD-PARTY

WARRANTY COMPANY THEY CALLED "SUPERIOR INSURANCE" THEIR NAME FO R

FIRST AUTOMOTIVE SERVICE CORPORATION OF NEW MEXICO. {¶44} Dixie argues that the court erred in not finding that the Whits ons' breach of

contract claim should have been brought against Superior. Howe ver, Dixie failed to object to the magistrate's decision on this basis and therefore this c ourt's review is "extremely

deferential" to the trial court. Capano & Assocs., L.L.C. v. On Assignment, Inc. , 12th Dist. Butler No. CA2015-08-153, 2016-Ohio-998, ¶ 13. Civ.R 53(D)(3)(b )(iv) provides: [e]xcept for a claim of plain error, a party shall not assign a s error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53 (D)(3)(a)( ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53 (D)(3)(b). The Ohio Supreme Court has articulated the civil plain error st andard as follows: Reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect o n the character of, and public confidence in, judicial proceeding s. Goldfuss v. Davidson , 79 Ohio St. 3d 116, 121, 1997-Ohio-401 (1997). Therefore, in order for a court to find plain error in a civil case, an appellant must establish (1) a deviation from a legal rule, (2) that the error was obvious, and (3) that the error affected the basic fairness, integrity, or public reputation of the judicial process and therefore challenged the legitimacy of the underlying judicial process. State v. Morgan , 153 Ohio St. 3d 196, 2017-Ohio-7565, ¶ 40, citing Goldfuss. {¶45} This court does not find that the record establishes an obvious legal error affecting the fairness of the proceedings. As described above, the court had competent and credible evidence before it that Dixie breached its agreeme nt with the Whitsons.Butler CA2019-09-157

- 12 - Superior was never a party to the proceedings and there was lim ited evidence presented to the court concerning Superior. Dixie presumably had familia rity with Superior and its reasons for declining coverage but never sought to join the com pany. Months lapsed between the first hearing, the second hearing, and the written decision in this case. Thus, Dixie had ample opportunity to bring Superior into the action. This court overrules Dixie's fifth assignment of error. {¶46} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.