[Cite as Koons v. Ozzy's Cash & Go Auto, L.L.C., 2021-Ohio-3337.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

DYLAN J. KOONS, et al., : 

 : Case No. 20CA3919 

Plaintiffs-Appellees, : 

 : 

v. : DECISION AND JUDGMENT 

: ENTRY 

OZZY’S CASH AND GO AUTO, LLC, : 

 : 

Defendant-Appellant. : RELEASED: 09/16/21 

 

APPEARANCES: 

Ozzy’s Cash and Go Auto, LLC, Pro Se1

, Appellant. 

Mark J. Cardosi, Southeastern Ohio Legal Services, Portsmouth, Ohio for 

Appellees. 

 

Wilkin, J. 

{¶1} This is an appeal from a Scioto County Court of Common Pleas 

judgment that found appellant, Ozzy’s Cash and Go Auto, LLC (“Ozzy’s), liable to 

Dylan J. Koons and Tiffany Koons (“the Koons”) for damages caused by its 

breach of warranties on two automobiles purchased by the Koons. Ozzy’s 

asserts a single assignment of error: the court erred in not determining the proper 

measure of damages for a breach of an implied warranty for the sale of personal 

property. After reviewing Ozzy’s arguments, the applicable law, and the record, 

we overrule Ozzy’s sole assignment of error, and affirm the trial court’s judgment 

in favor of the Koons. 

1

 Appellant’s brief in this matter was filed by retained counsel prior to disciplinary action by the Supreme Court of Ohio. 
Scioto App. No. 20CA3919 2

BACKGROUND 

{¶2} In April 2018, the Koons purchased a 2007 Hummer H3 SUV and a 

2010 Chevrolet Traverse from Ozzy’s. Including tax, the price of the Hummer 

was $10,851.08, but the Koons were credited $1,500 for a trade-in, and they 

made a $2,000 down payment. The Koons also purchased “gap protection” for 

$576, an “extended warranty” for $1,989.00, and paid $33.50 to license and 

register the Hummer. The Koons financed the balance of $9,949.58 at a 22.99 

annual percentage interest rate, which resulted in 51 monthly payments of 

$307.40. 

{¶3} Including tax, the purchase price of the Traverse was $15,532.38, but 

the Koons were credited $3,400 for a trade-in. The Koons also purchased an 

“extended warranty” for $1,736.00, and paid $33.50 to license and register the 

Traverse. The Koons financed the balance of $13,901.88, at a 22.99 annual 

percentage interest rate, which resulted in 54 monthly payments of $415.43. 

{¶4} The day after their purchase, the Koons had “severe mechanical 

issues” with the Traverse, causing it to be inoperable; it got stuck in second gear 

and the power steering failed. The Koons returned the vehicle to Ozzy’s, and it 

was eventually taken to Tim Short Auto to be repaired. After 3 1⁄2 months, the 

Traverse was returned to the Koons, but the power steering still did not work. 

The Koons have driven the Traverse a total of 358 miles since the date of its 

purchase. 

{¶5} About a week-and-a-half after the Koons purchased the Hummer, its 

transmission locked-up. Ozzy’s eventually towed the Hummer to Tim Short Auto 
Scioto App. No. 20CA3919 3

for repair. After 3 1⁄2 months, it was returned to the Koons and was functional, but 

it continued to leak fluid from the transmission. The Koons have driven the 

Hummer a total of 3,485 miles since the date of its purchase. 

{¶6} Approximately three weeks after they purchased the vehicles, the 

Koons asked Ozzy’s to rescind the purchase agreements for both vehicles. 

However, Ozzy’s refused stating that the Koons would have to wait 30 days “ ‘for 

the warranty to kick in.’ ” 

{¶7} The Koons filed a five-count complaint against Ozzy’s alleging (1) 

breach of contract and breach of expressed and implied warranties, (2) violation 

of the Consumer Sales Practices Act, (3) revocation of acceptance of the 

purchase agreements, (4) violation of the Magnuson Moss Warranty Act, and (5) 

common law duties, fraud and misrepresentation. The Koons subsequently 

amended their complaint adding the Credit Acceptance Corporation (CAC) as a 

defendant, which moved to arbitrate their claims. However, before the trial court 

resolved CAC’s motion, the Koons dismissed CAC as a party with prejudice. 

{¶8} The Koons’ remaining claims against Ozzy’s were addressed in a 

bench trial. After considering the evidence presented by the parties, the trial 

court issued a decision and entry that included findings of fact and conclusions of 

law. The court found that the Koons failed to prove a violation of the Consumer 

Sales Practices Act, or common law fraud or misrepresentation. The court 

further found that the “as is” clauses in both automobile purchase agreements 

were contingent upon the Koons not purchasing extended warranties. Because 

the Koons purchased extended warranties for both vehicles, the court found that 
Scioto App. No. 20CA3919 4

the “as is” clauses were negated, and consequently both vehicles were covered 

under implied warranties, “including the duty to act in good faith, as to those 

warranties.” The court found that Ozzy’s violated those warranties. The court 

also found a violation of the Magnuson Moss Act, which provides federal rights 

that permit enforcement of state law warranty violations. 

{¶9} Applying R.C. 1302.66, the court found that “significant mechanical 

problems” caused both vehicles to be “non-conforming” goods, that qualified the 

Koons to revoke their acceptance of both purchase agreements. The court 

concluded that Ozzy’s “put[ing] off” the Koons’ efforts to revoke the agreements 

caused them to incur $13,405.38 in damages. Ozzy’s appeals this judgment, 

regarding the damage award. 

ASSIGNMENT OF ERROR 

THE COURT ERRED IN NOT DETERMINING THE PROPER 

MEASURE OF DAMAGES FOR A BREACH OF AN IMPLIED 

WARRANTY FOR THE SALE OF PERSONAL PROPERTY 

{¶10} Ozzy’s argues that the trial court erred in awarding the Koons 

$13,405.38 in damages. Ozzy’s asserts that the trial court was required to 

calculate the Koons’ damages pursuant to R.C. 1302.88(B). This provision 

provides the measure of damages for breach of a warranty, which “is the 

difference at the time of acceptance between the value of the goods accepted 

and the value they would have been as warrantied,” absent special 

circumstances under R.C. 1302.88(B). In support of this proposition, Ozzy’s 

cites Eckstein v. Cummins, 46 Ohio App. 2d 192, 193-96, 347 N.E.2d 549 (6th 

Dist.1975) and Goddard v. General Motors, 60 Ohio St.2d 41, 396 N.E.2d 761 
Scioto App. No. 20CA3919 5

(1979). Ozzy’s argues that because there is no evidence showing the difference 

in value as set forth under R.C. 1302.88(B), the Koons’ “claim should be 

dismissed.” 

{¶11} In response, the Koons do not address Ozzy’s assertion that the

trial court erroneously failed to apply R.C. 1302.88(B) in determining their 

damages. Instead, the Koons claim that if a trial court determines that rescission 

of a contract is justified, the court has discretion to fashion a decree that will 

return the parties to their respective position they occupied before they entered 

the contract, citing Hubbard v. AASE Sales, LLC, 2018-Ohio-2363, 104 N.E.3d 

1027, ¶ 59 (5th Dist.). The Koons argue that the $13,405.38 damages award 

placed both parties in the position that they occupied before the contract, i.e., 

Ozzy’s paid back the money that Koons made toward the vehicles. The Koons 

also assert that the $13,405.38 is supported in the record pursuant to the 

purchase agreements. Therefore, the Koons maintain that we should affirm the 

trial court’s judgment. 

Law and Analysis 

1. Standard of Review 

{¶12} When a party “challenges the trial court's choice or application of 

law, our review is de novo.” Hampton v. Lively, 2020-Ohio-4713, 159 N.E.3d 

810, ¶ 13 (4th Dist.), citing Pottmeyer v. Douglas, 4th Dist. Washington No. 

10CA7, 2010-Ohio-5293, ¶ 21. This means that in our review, we afford the trial 

court no deference in determining what statutory provision applies. See State v. 

Blanton, 2018-Ohio-1278, 110 N.E.3d 1, ¶ 50 (4th Dist.), citing State v. Sufronko, 
Scioto App. No. 20CA3919 6

105 Ohio App.3d 504, 664 N.E.2d 596 (4th Dist.1995). We apply a de novo 

review of Ozzy’s assertion that the trial court was required to apply R.C. 

1302.88(B) to calculate the Koons’ damages. 

 {¶13} To the extent that Ozzy’s also argues that the trial court’s award of 

damages was speculative, a “plaintiff must show its entitlement to damages in an 

amount ascertainable with reasonable certainty.” Bevens v. Wooten 

Landscaping, Inc., 4th Dist. Pike No. 11CA819, 2012-Ohio-5137, ¶ 16, citing 

Allied Erecting & Dismantling Co., Inc. v. Youngstown, 151 Ohio App.3d 16, 

2002-Ohio-5179, 783 N.E.2d 523, ¶ 64 (7th Dist.); Interstate Gas Supply, Inc. v. 

Calex Corp., 10th Dist. Franklin No. 04AP-980, 2006-Ohio-638, ¶ 59. “Generally, 

we will uphold a trial court's judgment as long as the manifest weight of the 

evidence supports it—that is, as long as some competent and credible evidence 

supports it.” Bevens at ¶ 12, citing Eastley v. Volkman, 132 Ohio St.3d 328, 

2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. Therefore, a damage award “should not 

be overturned as being against the manifest weight of the evidence if some 

competent and credible evidence supports that judgment.” Knox v. Ludwick, 4th 

Dist. Ross No. 00CA2569, 2001-Ohio-2604, ¶ 3, citing C.E. Morris Co. v. Foley 

Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). And, “[f]actual 

findings of the trial court are to be given a great amount of deference because 

the trial court is in a better position ‘to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in 

weighing the credibility of the proffered testimony.’ ” Id., quoting Seasons Coal 

Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). 
Scioto App. No. 20CA3919 7

2. Analysis 

{¶14} We begin by recognizing that the trial court concluded that Ozzy’s 

breached implied warranties pertaining to the Koons’ vehicles, and that the 

Koons properly revoked the acceptance of the purchase agreements for both 

vehicles under R.C. 1302.66. These holdings are not disputed in Ozzy’s appeal. 

Rather, Ozzy’s contends that the trial court erred in not applying R.C. 1302.88(B) 

when it calculated the Koons’ damages for revocation. We will therefore adopt 

the trial court’s finding that the Koons revoked the purchase agreements and 

solely address the appropriate calculation of damages. 

{¶15} “Since the adoption of Article 2 of the Uniform Commercial Code in 

1962, the law in Ohio governing contracts for the sale of goods has been codified 

in R.C. Chapter 1302.” Hughes v. Al Green, Inc., 65 Ohio St. 2d 110, 111, 418 

N.E.2d 1355 (1981). Therefore, when a buyer’s “action is grounded upon what is 

in essence an alleged breach of a contract for the sale of a motor vehicle, ‘goods’ 

as defined in R.C. 1302.1(A)(8), resolution of this dispute must be guided by the 

provisions of R.C. Chapter 1302, unless superseded by other statutory 

provisions.” Id. (footnotes omitted). R.C. 1302.85 states: 

(A) Where the seller fails to make delivery or repudiates or the 

buyer rightfully rejects or justifiably revokes acceptance then with 

respect to any goods involved, * * * the buyer may cancel and 

whether or not he has done so may in addition to recovering so 

much of the price as has been paid[.] (Emphasis added.) 

{¶16} The Eighth District Court of Appeals has addressed the calculation 

of damages for the breach of warranties where the buyer properly revoked its 
Scioto App. No. 20CA3919 8

acceptance of an automobile in Arrow Int'l, Inc., v. Rolls-Royce Motors, Inc., 8th 

Dist. Cuyahoga Nos. 50305, 50341, 1986 WL 4665 (April 17, 1986). Similar to 

the instant case, the defendant in Arrow Int'l argued that “the proper measure of 

damages * * * is the difference between the value of the goods accepted and the 

value of the car had it been as warrantied,” pursuant to R.C. 1302.88. Id. at * 9. 

In rejecting this argument, the court of appeals reasoned that “[r]evocation of 

acceptance and recovery of damages for breach of warranty are two distinct 

remedies under the Uniform Commercial Code. While the buyer may pursue 

either remedy or both, each is treated in a different section of the Code and 

offers a separate form of relief.” Id. Because the trial court in Arrow Int'l found 

that the buyer properly revoked acceptance of the automobile, the court found 

that “the ‘value-received’ basis for damages under R.C. 1302.88 inapplicable 

where acceptance of the goods has been revoked.” (Emphasis added.) Id., citing 

Frontier Mobile Home Sales, Inc. v. Trigleth, 505 S.W.2d 516 (Ark.1974); Gawlick 

v. American Builders Supply, Inc., 519 P.2d 313 (N.M.App.1974). Instead, the 

court of appeals held that “[a] buyer who justifiably revokes acceptance of goods 

under R.C. 1302.66 is entitled to the purchase price paid in addition to incidental 

or consequential damages” under R.C. 1302.85 and 1302.89, respectively. Id. 

{¶17} The Sixth District Court of Appeals has also addressed the proper 

measure of damages for the breach of a warranty where the buyer revoked a 

purchase agreement for goods. Ball Works, Inc. v. Lima Lawnmower, Inc., 6th 

Dist. Lucas No. L-96-237, 1997 WL 362464 (June 27, 1997). In Ball Works, the 

trial court concluded that the seller of a lawnmower breached an implied warranty 
Scioto App. No. 20CA3919 9

of fitness for a particular purpose and that the buyer properly revoked the 

purchase agreement under R.C. 1302.66. Id. at * 3. Then “[t]he trial court found 

that, pursuant to R.C. 1302.88 and .89, due to the breach, [the buyer] is entitled 

to judgment and damages totaling the $1,965.20 already paid.” Id. 

{¶18} On appeal, the seller argued that the trial court erred in awarding 

the buyer the return of the purchase price paid, relying on Eckstein v. Cummins, 

41 Ohio App.2d 1, 321 N.E.2d 897 (6th Dist.1974), and Eckstein v. Cummins, 46 

Ohio App.2d 192, 347 N.E.2d 549 (6th Dist.1975). Id. at * 6. The court in Ball 

Works found that the Eckstein case was distinguishable because the buyer in 

Eckstein did not revoke the purchase agreement, but the buyer in Ball Works did. 

Id. Therefore, similar to the decision in Arrow Int'l, the court in Ball Works

concluded that “the appropriate measure of damages is set forth in R.C. 1302.85, 

not R.C. 1302.88 and .89.” Id. The court noted that 

[a]lthough the trial court stated it was awarding damages pursuant 

to R.C. 1302.88 and .89, its computations were consistent with the 

measure of damages set forth in R.C. 1302.85. Accordingly, this

court finds that the trial court was correct in finding that Ball Works 

is entitled to recover as much of the purchase price as has already 

been paid. 

Id., citing R.C. 1302.85. 

 

{¶19} Nevertheless, Ozzy’s cites Eckstein, 46 Ohio App. 2d 192, 347 

N.E.2d 549 and Goddard, 60 Ohio St.2d 41, 396 N.E.2d 761 in support of the 

proposition that the trial court erred in not relying on R.C. 1302.88 to calculate 

the Koons’ damages after revocation of the purchase agreements. However, as 

made clear in Ball Works, Eckstein is distinguishable from this case. In Eckstein, 

the buyer did not revoke the purchase agreement, so his damages were 
Scioto App. No. 20CA3919 10 

controlled by R.C. 1302.88, unlike the instant case, in which the Koons did 

revoke the purchase agreements; therefore, their damages are calculated under 

1302.85. 

{¶20} Goddard is similarly unsupportive of Ozzy’s argument. In Goddard

the buyer of a vehicle successfully sued the manufacturer and seller for breach of 

an express warranty. Goddard at 41-43. Goddard holds that “Where a new car 

express warranty limits a buyer's remedy to repair and replacement of defective 

parts, but the new car is so riddled with defects that the limited remedy of repair 

and replacement fails its essential purpose, the buyer may institute an action to 

recover damages for breach of warranty under R.C. 1302.88(B).” Id. at syllabus. 

However, unlike the present case, there was no mention that the buyer revoked 

or even attempted to revoke the purchase agreement for the automobile. 

Consequently, we do not find Goddard instructive in addressing the proper 

calculation of damages due to a breach of warranty, when the buyer has revoked 

the purchase agreement. 

{¶21} We agree with Ball Works and Arrow Int'l that a trial court may 

award damages under R.C. 1302.85 for the purchase price paid where the buyer 

has revoked the purchase agreement for goods, which in this case involved two 

vehicles. Both decisions are consistent with the plain language of R.C. 1302.85, 

and awarding a buyer the monies paid under these circumstances is consistent 

with the purpose of rescission, which is “to restore the parties to their original 

positions as if the contract had never been formed.” Bell v. Turner, 4th Dist. 

Highland Nos. 12CA14, 12CA15, 2013-Ohio-1323, ¶ 22. Consequently, we find 
Scioto App. No. 20CA3919 11 

Ozzy’s argument that the trial court was required to calculate the Koons’ 

damages after revocation of the purchase agreements under R.C. 1302.88(B) 

lacking in merit. Despite this conclusion, our analysis is not yet complete. 

{¶22} The trial court did not cite R.C. 1302.85, or any other authority, in 

calculating the Koons’ $13,405.38-damage award, nor did it indicate how it 

arrived at that particular amount. However, a review of the purchase agreements 

for the vehicles herein reveals the following. 

{¶23} The price of the Hummer was $10,851.08. After making a $2,000 

down payment, receiving a $1,500 credit for a trade-in, purchasing gap coverage 

for $576, purchasing an extended service warranty for $1,989.00, and paying 

$33.50 to license and register the vehicle, there was $9,949.58 left to be 

financed. Financing $9,949.58 at a 22.9% annual percentage rate, resulted in 51 

monthly payments of $307.40 per month. 

{¶24} The price of the Traverse was $15,532.38. After receiving a $3,400 

credit for a trade-in, purchasing an extended service warranty for $1,736.00, and 

paying $33.50 to license and register the vehicle, there was $13,901.88 that 

remained to be financed. Financing $13,901.88 at a 22.9 annual percentage 

rate, resulted in 54 monthly payments of $415.42. 

{¶25} Mr. Koons testified that he made nine monthly payments on both 

vehicles for a total of $6,505.38. The sum of the down payment ($2,000), both 

trade-in credits ($1,500 and $ 3,400), and the nine months of payments for both 

vehicles ($6,505.38), totals $13,405.38. This is the exact amount of damages 
Scioto App. No. 20CA3919 12 

that the trial court awarded to Koons, and essentially represents the amount of 

“the purchase price paid” by the Koons. Therefore, we find that the damage 

award is supported by “some evidence” and is “ascertainable with reasonable 

certainty.” And, finally, similar to the court’s reasoning in Ball Works, although 

the trial court herein did not specifically cite R.C. 1302.85 in its decision, because 

the damages it awarded to the Koons are consistent with that provision (i.e., they 

recovered monies paid on the vehicles), we find that the trial court did not err in 

calculating the Koons’ damage award. See Ball Works, 1997 WL 362464, at *6. 

Therefore, we overrule Ozzy’s assignment of error. 

CONCLUSION 

{¶26} Having overruled Ozzy’s sole assignment of error, we affirm the trial 

court’s decision and entry in favor of the Koons. 

JUDGMENT AFFIRMED. 
Scioto App. No. 20CA3919 13 

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall 

pay the costs. 

 The Court finds there were reasonable grounds for this appeal.

 It is ordered that a special mandate issue out of this Court directing the 

Scioto County Common Pleas Court 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. 

 For the Court, 

 BY: ____________________________ 

 Kristy S. Wilkin, Judge

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.