[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 Se 1 , 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 (“O zzy’s), liable to Dylan J. Koons and Tiffany Koons (“the Koons”) for damages caus ed 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 de termining the proper measure of damages for a breach of an implied warranty for the sale of personal property. After revie wing Ozzy’s arguments, the applicable law , and the record, we overrule Ozzy’s sole assignment of error, and affirm the tri al 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 O zzy’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 prot ection” 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 p ayments of $307.40. {¶3} Including tax, the purchase price of the Traverse was $15,532.3 8, 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 a nd register the Traverse. The Koons financed the balance of $13,901.88, at a 2 2.99 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 stil l did not work. The Koons have driven the Traverse a total of 358 miles since t he date of its purchase. {¶5} About a week-and-a-half after the Koons purchased the Hummer, i ts transmission locked-up. Ozzy’s ev entually towed the Hummer to Tim Short AutoScioto 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 ha ve driven the Hummer a total of 3,485 miles since the date of its purchase. {¶6} Approximately three weeks after they purchased the vehicles, th e Koons asked Ozzy’s to rescind the purchase agreements for both vehicles. However, Ozzy’s refused stating that the Koons would have to wa it 30 days “ ‘for the warranty to kick in.’ ” {¶7} The Koons filed a five-count compl aint against Ozzy’s alleging (1) breach of contract and breach of expressed and implied warranti es, (2) violation of the Consumer Sales Practices Act, (3) revocation of acceptan ce of the purchase agreements, (4) violation of the Magnuson Moss Warrant y Act, and (5) common law duties, fraud and misrepresentation. The Koons subs equently amended their complaint adding the Credit Acceptance Corporatio n (CAC) as a defendant, which moved to arbit rate their claims. However, bef ore 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 p arties, the trial court issued a decision and ent ry that included findings of fac t and conclusions of law. The court found that the Koons failed to prove a violatio n of the Consumer Sales Practices Act, or common l aw fraud or misrepresentation. The court further found that the “as is” clauses in both automobile purch ase agreements were contingent upon the Koons not purchasing extended warranties. Because the Koons purchased extended warranties for both vehicles, the court found thatScioto App. No. 20CA3919 4 the “as is” clauses were negated, and consequently both vehicle s were covered under implied warranties, “including the duty to act in good fa ith, as to those warranties.” The court found t hat Ozzy’s violated those warran ties. The court also found a violation of the M agnuson Moss Act, which provides federal rights that permit enforcement of state law warranty violations. {¶9} Applying R.C. 1302.66, the court fo und that “significant mechan ical problems” caused both vehicles to be “non-conforming” goods, th at qualified the Koons to revoke their acceptance of both purchase agreements. The court concluded that Ozzy’s “put[ing] o ff” the Koons’ efforts to revo ke the agreements caused them to incur $13,405.38 in damages. Ozzy’s appeals thi s judgment, regarding the damage award. ASSIGNMENT OF ERROR THE COURT ERRED IN NOT D ETERMINING 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 cour t erred in awarding the Koons $13,405.38 in damages. Ozzy’s asse rts that the trial court was required to calculate the Koons’ damages pur suant 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 g oods accepted and the value they would have been as warrantied,” absent speci al circumstances under R.C. 1302.88(B). In support of this propos ition, 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 761Scioto App. No. 20CA3919 5 (1979). Ozzy’s argues that becaus e there is no evidence showin g 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 dete rmining their damages. Instead, the Koons claim that if a trial court determ ines 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 b efore 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 da mages award placed both parties in the posi tion that they occupied before t he 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 purs uant to the purchase agreements. Therefore, the Koons maintain that we sho uld affirm the trial court’s judgment. Law and Analysis 1. Standard of Review {¶12} When a party “challenges the trial court's choice or applicatio n 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. Thi s means that in our review, we afford the trial court no deference in determining what statutory provision appl ies. 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 a rgues that the trial court’s aw ard 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. “Gener ally, we will uphold a trial court's judg ment as long as the manifest weight of the evidence supports it—that is, as long as some competent and cre dible 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 awar d “should not be overturned as being against the manifest weight of the evide nce 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 d eference because the trial court is in a better position ‘to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observa tions 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 Ozz y’s breached implied warranties pertaining to the Koons’ vehicles, and that the Koons properly revoked the acceptance of the purchase agreement s for both vehicles under R.C. 1302.66. These holdings are not disputed i n Ozzy’s appeal. Rather, Ozzy’s contends that the tr ial court erred in not apply ing R.C. 1302.88(B) when it calculated the Koons’ da mages for revocation. We will therefore adopt the trial court’s finding that the Koons revoked the purchase a greements and solely address the appropriate calculation of damages. {¶15} “Since the adoption of Article 2 of the Uniform Commercial Cod e 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 groun ded upon what is in essence an alleged breach of a contract for the sale of a mo tor vehicle, ‘goods’ as defined in R.C. 1302.1(A)(8), resolution of this dispute mus t be guided by the provisions of R.C. Chapter 1302, unless superseded by other sta tutory 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 calculat ion of damages for the breach of warranties where the buyer properl y revoked itsScioto 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. 1 302.88. 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 t wo distinct remedies under the Uniform Commercial Code. While the buyer ma y pursue either remedy or both, each is treated in a different section o f 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, t he 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 a cceptance of goods under R.C. 1302.66 is entitled to the purchase price paid in ad dition to incidental or consequential damages” under R.C. 1302.85 and 1302.89, respe ctively. 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. Li ma Lawnmower, Inc., 6th Dist. Lucas No. L-96-237, 1997 WL 362464 (June 27, 1997). In Ball Works , the trial court concluded that the se ller of a lawnmower breached a n implied warrantyScioto 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 awar ding 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 pursu ant 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 Ba ll Works is entitled to recover as much of the purchase price as has alr eady 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. 1 302.88 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 wereScioto App. No. 20CA3919 10 controlled by R.C. 1302.88, unlike the instant case, in which t he Koons did revoke the purchase agreements; therefore, their damages are ca lculated under 1302.85. {¶20} Goddard is similarly unsupportive of Ozzy’s argument. In Goddard the buyer of a vehicle successfully sued the manufacturer and s eller 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 replacem ent of defective parts, but the new car is so riddled with defects that the limi ted remedy of repair and replacement fails its essential purpose, the buyer may inst itute 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 auto mobile. Consequently, w e 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 wh ere the buyer has revoked the purchase agreement for goods, which in this cas e involved two vehicles. Both decisions are consistent with the plain languag e 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 partie s 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. Consequent ly, we findScioto App. No. 20CA3919 11 Ozzy’s argument that the trial co urt 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 authori ty, in calculating the Koons’ $13,405.38-damage award, nor did it indi cate how it arrived at that particular amount. However, a review of the pu rchase 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 c redit for a trade-in, purchas ing 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 rat e, 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 $1 3,901.88 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 $6,50 5.38. The sum of the down payment ($2,000), both trade-in credits ($1,500 and $ 3,400), and the nine months of p ayments for both vehicles ($6,505.38), totals $ 13,405.38. This is the exact amo unt of damagesScioto App. No. 20CA3919 12 that the trial court awarded to Koons, and essentially represen ts the amount of “the purchase price paid” by the Koons. Therefore, we find tha t the damage award is supported by “some evidence” and is “ascertainable wit h 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 i n its decision, because the damages it awarded to the Koons are consistent with that pr ovision (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 a ssignment of error, we affirm th e 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 m andate issue out of this Court d irecting the Scioto County Common Pleas Court to carry this judgment into ex ecution. A certified copy of this entry shall constitute the mandate pu rsuant 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, t his document constitutes a fin al judgment entry and the time peri od for further appeal commences from the date of filing with the clerk.