[Cite as Allen v. Jackson , 2014-Ohio-5793.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101193

JANET J. ALLEN

PLAINTIFF-APPELLANT

vs. ANDREW JACKSON

DEFENDANT-APPELLEE

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-800771

BEFORE: Jones, P.J., E.A. Gallagher, J., and Kilbane, J.

RELEASED AND JOURNALIZED: December 31, 2014ATTORNEYS FOR APPELLANT

Gerald R. Walton John J. Schneider Gerald R. Walton & Associates 2800 Euclid Avenue Suite 320 Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

Milton D. Jefferson 11502 Nelson Avenue Cleveland, Ohio 44105 Joseph W. Jasper, Jr. 614 West Superior Avenue Suite 940 Cleveland, Ohio 44113

LARRY A. JONES, SR., P.J.:{¶1} This case involves car repairs made to plaintiff-appellant Ja net Allen’s 2001 Ford Focus by AJ Automotive, which is owned by de fendant-appellee, Andrew Jackson. A jury found

in favor of Jackson and Allen has appealed. Procedural History and Facts {¶2} In February 2013, Allen sued Jackson, allegi ng breach of contract, negligence, fraud,

and a violation of the Ohio Consumer Sales Practices Act. Jackson moved for summary judgment, which the trial court denied. Allen submitted an expert report from Dean Stecker, the

mechanic who examined her car after she had it towed to his repair s hop. Allen also filed a motion in limine to preclude any expert testimony from defense witnesses because Jackson had not submitted an expert report. The court gran ted the motion in limine and the matter proceeded to a jury trial at which the following pertinent evidence was presented. {¶3} In 2006, Allen purchased a used Ford Focus with over 42,000 miles on it. She began experiencing problems with the car’s engi ne in the summer of 2009. Allen’s uncle tried to fix the car, but was unable to. Allen had her car towed to AJ Automotive on Carnegie Avenue in Cleveland for repairs. At this time, the car had 81,765 miles on it. Allen’ s mother handled all the conversations with AJ Automotive and paid th e invoices. Allen’s mother surmised that the engine needed to be rebuilt and she told AJ Au tomotive that her budget did not allow for a brand new engine. {¶4} The Ford was at AJ Automotive for re pairs from September 24, 2009 until October 26, 2009. Keith Dillard, AJ Automotive’s service ma nager, testified that when Allen’s car was first towed to the repair shop, the top porti on of the motor was disassembled. Once their mechanic reassembled the motor, they discovered more needed to be done to fix the car. Dillard faxed multiple estimates to Allen’s mother and th e final estimate was $1,816.70.{¶5} Chad Padgett, the mechanic at AJ Automotive who installed the engine and did the other repairs to the car, testified that when Allen initially brought the car in, the engine was “half tore apart.” Padgett testified that a subcontractor from Clark Automotive worked on the Ford’s engine, but he personally inspected the engine to make sure everything was in working order

before he reinstalled it. {¶6} Allen picked her car up on October 26, 2009, but brought it back about a week later, on November 3, complaining of leaking anti freeze. At this time, the car had 82,084 miles on it. Padgett installed a new overfl ow bottle and replaced the overflow cap. Padgett testified that the car was not overheating when he replaced the overflow bottle; he pressu re-checked everything and it checked out okay. {¶7} Allen picked her car up November 6 but ha d it towed back to the shop on November 9 claiming it was overheating. Dillard testified that the coolant fan, radiator, and thermostat needed to be replaced. Padgett admitted that it was unusual for a radi ator “and all that stuff” to go bad in three days’ time but “w e’re dealing with old cars,” “bum ps,” and “living in Cleveland.” The invoice for the repairs totaled $501.80. {¶8} Allen returned to AJ Automotive on D ecember 15, 2009 because her car “still wasn’t running right.” The shop replaced the dipstick tube . The cost to install a new oil dipstick tube and seal was $137.55. The car had 83,226 miles on it. {¶9} In January 2010, Allen had her car towed to AJ Automotive complaining that the “engine was knocking.” According to Dillard, Allen’s mo ther said she was not going to put any more money into the car but expected it to be repaired. Dillard told her mother that they would inspect the car to see what was wrong with it a nd whether any necessary re pairs would be covered by her warranty. But, Dillard told Allen’s mother, if there were repairs that were not covered bywarranty, she would be charged for them. {¶10} Allen’s mother consulted with her attorney and had the car towed to DAD’s

Automotive. Dillard testified that AJ Automo tive did not inspect the car at the January 2010

visit. {¶11} Dean Stecker, owner of DAD’s Automotive a nd a master mechanic, testified that Allen’s car was towed to his shop for a second opinion. The car sat on his outdoor, unsecure lot for a couple of months until he inspected it, due in part to a lack of communication by Allen’s

mother. {¶12} According to Stecker, one of the pistons was missing from its cylinder, so the car was running on three cylinders instead of four. Stecker located the missing piston in the trunk of Allen’s car; the piston was destroyed. Accordin g to Stecker, someone must have physically removed the piston and to do so “is a big job.” Stecker testified that it was possible to drive a four-cylinder car on only three cylinders, but the operator would probably feel the engine shake and “miss,” and anyone driving the car with a missing piston would definitely know something was wrong with the car. {¶13} Stecker reviewed the invoices from AJ Au tomotive and opined that Allen had been charged for a head gasket that had never been replaced; the car still needed a new head gasket when he inspected it. He also opined that Alle n’s car had signs that it had been overheating for

some time. {¶14} Stecker testified that “the engine had a problem and was never repaired correctly because the pressure of that piston coming up in to the cooling system would have caused the coolant reservoir to go bad, would cause th e radiator to go ba d due to pressure.” {¶15} Stecker admitted that Allen’s car sat on his unsecured lot for more than two monthsbefore he inspected it. When he began to work on the car, he noticed that the starter wires were unconnected, which meant that the car was inoperable. {¶16} DAD’s automotive charged Allen’s mother $210 for repair work that included installing the starter wires, rem oving the cylinder head, as well as the diagnostic work involved in determining that the piston had been removed. Allen did not want to pay to have the car repaired and sold it for parts for $250. {¶17} Padgett testified that all four pistons were in the vehicle when he performed the engine work on the car in September and Oc tober 2009: “I went over the motor myself personally, all the pistons were in the vehicle. If the piston was not in the vehicle, [it] would not run. * * * The engine would smoke, smoke would come out the exhaust if a piston was missing out of the engine.” On cross-examination, Pa dgett was asked how he would know whether Clark Automotive, that had worked on the engine for AJ Automotive, had correctly installed all new pistons in Allen’s car. Padgett responded: I visually inspected it and I see everything that is new that is in the car or I would make a complaint. * * * I cannot visibl y see the [cylinder] rings without me disassembling the motor. You can see th e new pistons, you can see the new rods. You can see that. {¶18} Padgett insisted the subcontractor from Clark Automotive installed the new pistons. Padgett further testified, “If you’re saying that on 10/26 that the vehicle was released missing a piston, I’m pretty sure on 10/27 the customer woul d be back complaining about a missing piston.” Padgett also insisted that he personally installe d the new head gasket on the car and that both he and Dillard road tested the vehicle after the engine work was complete and before it was released to Allen in October 2009, and the car was running fine. {¶19} Dillard testified that after the initial repairs to the engine were made, and up until January 2010, Allen returned to the repair shop w ith “non-engine related complaints.” Dillardtestified “[y]ou can’t determine normal wear and tear [and] when something’s going to go out on a used vehicle. All I can go on is what was pr operly functioning fine when it left our care.” Dillard insisted he road tested the car with Allen before she drove it home. Allen, on the other hand, testified that she never took a test ride in the car with anyone from AJ Automotive. {¶20} Jackson testified that he owned AJ Au tomotive and reviewed Allen’s invoices personally and with Dillard and Padgett. Jackson testified they did the repairs at a “low, low cost” because he (Jackson) knew Allen’s mother was on a budget. He remembered going over

the first two invoices with Allen’s mother in his office sometime in N ovember 2009 and Allen’s mother agreed that the work needed to be done. {¶21} Jackson testified that he agreed to accep t a partial payment on the third invoice and allow Allen’s mother to pay it off over time: Prior to her doing any work on [November] 9th * * * she [Allen’s mother] told me that she had spent too much money alread y on this car on these two invoices * * * we had a discussion about whether or not sh e could afford the radiator work and all that. At that point I agreed with Ms. A llen, I understood and [said] I want to work with you, I know that this is expensive for you and I’m willing to * * * let [you] make a down payment. {¶22} The jury found in favor of Jackson and AJ Automotive. Allen moved for a judgment nothwithstanding the verdict and for a new trial, which the trial court denied. {¶23} Allen filed a timely appeal. Assignments of Error I. Defendant invited error by attempting to elicit expert testimony that had been previously precluded. II. Defendant invited error by arguing facts not in evidence. III. The trial court erred in that the judgment of the court is an abuse of discretion and contrary to the manifest weight of the evidence. Law and Analysis{¶24} In the first and second assignments of error, Allen claims that defense counsel acted inappropriately when the attorney elicited improper opinion testimony from AJ Automotive’s mechanic in contravention of the motion in limine and by making statements during closing argument that were not part of the evidence presented at trial. {¶25} First, Allen claims that defense counsel erred when he questi oned Padgett about the missing piston and then asked him about a photog raph of the car that had been offered into evidence. We disagree. {¶26} During his direct examination, counsel as ked Padgett what w ould happen if there was a piston missing from the vehicle. Padge tt responded that the engine would smoke, oil would come out, there would be a fire in the mo tor, and “it would be disastrous.” Allen’s attorney then objected and the tr ial court sustained the objection. {¶27} We do not find that defense counsel’s que stion was offered as a way to elicit improper opinion or expert testim ony. Padgett was not offered as an expert nor did defense counsel inquire of Padgett about his expertise in the field of au tomotive mechanics. Plaintiff’s theory was that AJ Automotive performed substa ndard work or installe d substandard parts on Allen’s car. To refute that theory, counsel was questioning Padgett about the work he performed on Allen’s car, and the mechanic was explaining how a car with a missing piston could not run properly; thereby, supporting the defense’s theo ry that AJ Automotive was not liable for the

condition of Allen’s car. {¶28} Defense counsel then inquired about a photograph that Allen had offered into evidence, but Padgett did not reply before Alle n’s attorney requested a sidebar. After the sidebar, defense counsel ended hi s direct examination of Padge tt and no further questions were asked about the photograph.{¶29} Even if Padgett’s response to defense c ounsel’s line of questioning was improper,

the trial court sustained Allen’s objection to defense counsel’s question and later instructed the jury as follows: Evidence Stricken. Questions to whic h the Court sustained an objection or statements or answers ordered stricken which you were instructed to disregard are not evidence and must be treated as though these were never heard. Objections and Speculation. You must not guess why the Court sustained an objection to any question or what the answer to such a question might have been. You must not consider as evidence any su ggestion included in a question that was not answered. {¶30} A jury is presumed to follow instructions issued by the trial court. Bell v. Mt. Sinai

Med. Ctr. , 95 Ohio App.3d 590, 599, 643 N.E.2d 151 (8th Dist.1994). Absent more, we will presume the jury did so in this case. {¶31} Allen also claims that defense counsel made inappropriate remarks in closing arguments by telling the jury someone other than AJ Automotive must have tampered with or

tried to fix Allen’s car. But de fense counsel was making referen ces to testimony introduced at

trial with inferences drawn from that testimony. As an advocate for his client, defense counsel was setting forth a theory for the jury to explain how Allen’s car might have ended up as it did absent his client being liable for its condition. {¶32} Trial counsel is generally accorded cons iderable latitude in closing argument. Durst v. Van Gundy , 8 Ohio App.3d 72, 455 N.E.2d 1319 (10th Dist.1982). “A [party] may freely comment in closing argument on what the eviden ce has shown and what r easonable inferences the [party] believes may be drawn therefrom.” Peffer v. Cleveland Clinic Found. , 8th Dist. Cuyahoga No. 94356, 2011-Ohio-450, ¶ 27, citing State v. Clay , 181 Ohio App.3d 563, 2009-Ohio-1235, 910 N.E.2d 14, ¶ 47 (8th Dist.). Open ing and closing statem ents are also not

evidence. Peffer at id. , citing State v. Spaqi , 8th Dist. Cuyahoga No. 69851, 1997 Ohio App.LEXIS 713 (Feb. 27, 1997). Here, th e trial court instructed the jury as such, and, again, the jury is presumed to follow the proper instructions of the trial court. {¶33} Therefore, we cannot say that the trial court abused its disc retion in allowing

defense counsel to make these comments in closin g arguments; the inferences counsel made can be drawn from the testimony given in this case. {¶34} In light of the above, we do not find an y prejudicial misconduct during the case in

chief or defense counsel’s clos ing argument. The first and s econd assignments of error are

overruled. {¶35} In the third assignment of error, Allen a sserts that the trial c ourt’s judgment should

be reversed and a new trial ordered because th e jury’s verdict in favor of Jackson and AJ Automotive was against the manifest weight of the evidence. {¶36} The manifest weight of the evidence invol ves a party’s burden of persuasion and is “quantitatively and qualitatively different from” the sufficiency of the evidence. Eastley v.

Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19, 23. In Eastley , the Ohio Supreme Court made it clear that the standard of review for manifest weight of the evidence set

forth in State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), applies in civil as well as

criminal cases. Eastley at ¶ 17. In Thompkins , the Ohio Supreme Cour t described manifest weight of the evidence as follows: Weight of the evidence concerns “the inc lination of the greater amount of credible evidence, offered in a trial, to support one si de of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to beestablished before them. Weight is not a question of mathema tics, but depends on its effect in inducing belief.” (Emphasis omitted.) Id. at 387, quoting Black’s Law Dictionary 1594 (6th Ed.1990). {¶37} In assessing whether a jury’s verdict is against the manifest weight of the evidence, we examine the entire record, weigh the eviden ce and all reasonable inferences, consider the witnesses’ credibility, and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the verdict must be

overturned and a ne w trial ordered. State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶38} In weighing the evidence, we are guided by a presumption that the findings of the

trier of fact are correct. Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). This presumption arises because the trier of fact had an opportunity “to view the

witnesses and observe their dem eanor, gestures and voice inflecti ons, and use these observations in weighing the credibility of the proffered testimony.” Id. Thus, “to the extent that the evidence is susceptible to more than one interpre tation,” we will “c onstrue it consistently with the jury’s verdict.” Berry v. Lupica , 196 Ohio App.3d 687, 2011-Ohio-5381, 965 N.E.2d 318, ¶ 22 (8th Dist.), citing Ross v. Ross , 64 Ohio St.2d 203, 414 N.E.2d 426 (1980). See also Seasons

Coal at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978) (When conducting a manife st weight of the eviden ce review, ““every reasonable presumption must be made in favor of the judgment[.] * * * If the evidence is susceptible of more than one construction, the review ing court is bound to give it that interpretation which is * * * most favorable to sustaining the verdict and judgment.”’) {¶39} Allen argues that Padgett’s claim that her engine had a complete overhaul was notcredible since Padgett testifie d he never saw an invoice from Clark Automotive showing the work had been done, could not verify Clark Auto motive’s work unless the engine block was disassembled, and was not an expe rt. Allen points to her expert ’s testimony that it was obvious from his examination of her car’s engine that AJ Automotive claimed to do work it did not do; therefore, “the greater of the preponderance of th e evidence clearly established that quality of the repairs or the issues claimed to have been fixed were not.” According to Allen, the jury lost its way and should have found that AJ Automotiv e never took care of the car’s underlying overheating problems and, as supported by her expert’s testimony, the engine problems “probably” began because of engine overheating. {¶40} However, the jury, as trier of fact, was in the best position to judge the credibility of witnesses and resolve any conflicts in the evidence. Dillard testified that Allen brought her car in with over 82,000 miles on it, and AJ Automotive ove rhauled the engine and test drove the car before returning it to her in Oc tober 2009. Padgett tes tified that he checked over the work that Clark Automotive did before he installed the engi ne, saw that all the pistons were in place, and installed the new head gasket. {¶41} When Allen returned on November 3, she did not complain of engine trouble. Allen claimed her car was leaking antifreeze and AJ Automotive determined she needed a new overflow bottle and cap. At this visit, Padgett performed pressure checks and concluded that the car did not need a new radiator. Three days later, Allen returned because her car was overheating. Although Padgett a nd Dillard admitted it was strange th at a radiator would go bad three days after it checked out fine, they both also testified that it was not unusual for things to quickly deteriorate on a high-mileage older car. {¶42} When Allen returned in January, no one at AJ Automotive examined the car beforeit was towed to DAD’s Automotive. Stecker testifie d that he did not insp ect the car for a couple of months, due in part to a lack of comm unication from Allen’s mo ther, and it sat on his unsecured lot from January until May of 2011. From October 26 through December 15, Allen put almost 1,500 miles on the car, which alread y had over 80,000 miles on it. And after Allen initially had the engine rebuilt by AJ Automotive in October 2009, she returned with complaints that were unrelated to the engine. {¶43} Thus, although the car went through a series of costly repairs a nd Allen was left still without a working vehicle, and although her car was missing a piston and the starter wires were unconnected when Stecker finally inspected it, the jury found that AJ Automotive was not liable. In light of the above, we do not find that the jury’s verdict was against the manifest weight of the

evidence. {¶44} The third assignment of error is overruled. {¶45} Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing 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.

LARRY A. JONES, SR., PRESIDING JUDGE EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR