[Cite as Crawford v. Stan, 2012-Ohio-3624.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

HOWARD R. CRAWFORD : JUDGES: 

 : 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellant : Hon. William B. Hoffman, J. 

 : Hon. Sheila G. Farmer, J. 

-vs- : 

 : Case No. 2011CA00197 

TERRY M. STAN : 

 : 

 : 

 Defendant-Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, 

Case No. 2011CVI3621 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: August 6, 2012 

APPEARANCES: 

For Appellant: For Appellee: 

 

HOWARD R. CRAWFORD, PRO SE MICHAEL P. ZIRPOLO 

9981 E. Lincoln Way Suite 206 Belden Village Tower 

Orrville, OH 44667 4450 Belden Village St., NW 

 Canton, OH 44718 

 

Delaney, P.J. 
{¶1} Plaintiff-Appellant Howard R. Crawford appeals the August 12, 2011 

judgment entry of the Canton Municipal Court. Defendant-Appellee is Terry M. Stan. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Defendant-Appellee Terry M. Stan (“Seller”) purchased a 2003 Chevy 

Blazer on July 11, 2009 from Bobs Auto Sales. The vehicle had 52,364 miles on it 

and Seller paid $7,346.70 to purchase the vehicle. The vehicle’s buyers order 

contains the following language: “VEHICLE SOLD AS IT. NO WARRANTY. IT HAS 

BEEN FULLY DISCLOSED TO TERRY M. STAN THAT THE 2003 S10 BLAZER 

STK.# 9870 WAS A MANUFACTURER BUY BACK.” The note is followed by the 

signature of Seller. 

{¶3} R.C. 1345.71(G) defines a “buyback” motor vehicle as follows: 

 “Buyback” means a motor vehicle that has been replaced or 

repurchased by a manufacturer as the result of a court judgment, a 

determination of an informal dispute settlement mechanism, or a 

settlement agreed to by a consumer regardless of whether it is in the 

context of a court, an informal dispute settlement mechanism, or 

otherwise, in this or any other state, in which the consumer has asserted 

that the motor vehicle does not conform to the warranty, has presented 

documentation to establish that a nonconformity exists pursuant to 

section 1345.72 or 1345.73 of the Revised Code, and has requested 

replacement or repurchase of the vehicle. 

{¶4} Seller testified he learned the buyback occurred in August 2004 because 

the original purchaser encountered difficulties with the brakes and a leak in the driver’s 
side door. The manufacturer took the vehicle back, repaired the defects, and resold 

the vehicle. The vehicle had 7,854 miles at the time it was taken back by the 

manufacturer. Since purchasing the vehicle, Seller testified the vehicle had no major 

repairs. 

{¶5} R.C. 1345.76(C) states that a buyback vehicle may not be resold unless 

the manufacturer obtains a new certificate of title for the vehicle, which designates the 

vehicle as a buyback. The clerk shall issue a buyback certificate of title for the vehicle 

on a form, prescribed by the registrar of motor vehicles, that bears or is stamped on its 

face with the words, “BUYBACK: This vehicle was returned to the manufacturer 

because it may not have conformed to its warranty” in black boldface letters in an 

appropriate location as determined by the registrar. Id. “Every subsequent certificate 

of title, memorandum certificate of title, or duplicate copy of a certificate of title or 

memorandum certificate of title issued for the buyback also shall bear or be stamped 

on its face with the words ‘BUYBACK: This vehicle was returned to the manufacturer 

because it may not have conformed to its warranty.’ in black boldface letters in the 

appropriate location.” Id. 

{¶6} The Stark County Clerk of Courts issued a Certificate of Title for the 

vehicle on July 15, 2009. The Certificate of Title does not contain any language that 

the vehicle was a buyback vehicle. 

{¶7} In 2011, Seller listed the vehicle for sale on Craig’s List. PlaintiffAppellant Howard R. Crawford (“Buyer”) saw the advertisement and contacted Seller 

about the vehicle. Seller did not tell Buyer the vehicle was a buyback vehicle and 

Buyer did not ask. Buyer asked Seller questions about the repair history vehicle, but 
Buyer did not do any prior independent research on the vehicle, such as obtaining a 

Carfax report. Buyer took the vehicle for a test drive. After the test drive, Buyer 

offered $7,000.00 cash to purchase the vehicle and Seller accepted. The transaction 

between the parties lasted 45 minutes. On May 16, 2011, the parties entered into a 

Bill of Sale that stated, “SALE IS FINAL AND CONDITION IS ‘AS IS.’” 

{¶8} Shortly after purchasing the vehicle, Buyer was looking in the glove 

compartment and found documentation stating the vehicle was a buyback vehicle. 

Buyer contacted the Seller and demanded Seller refund half of the purchase price. 

Seller refused based on the “as is” language of the Bill of Sale. 

{¶9} Buyer filed a Smalls Claims Complaint with the Canton Municipal Court 

on May 27, 2011. Buyer alleged Seller engaged in consumer fraud in the purchase of 

the vehicle and demanded $3,000 in damages. 

{¶10} The matter went to trial before the magistrate. At trial, Buyer testified 

and presented evidence, including a Carfax report that listed the vehicle as a buyback 

vehicle. (Plaintiff’s Exhibit 5.) Seller testified and presented one witness. On June 

29, 2011, the magistrate concluded Buyer failed to establish Seller engaged in fraud in 

the transaction, Buyer failed to establish he had suffered damages, and therefore 

recommended the complaint be dismissed. 

{¶11} Buyer filed objections to the magistrate’s recommendation. Seller did 

not file a response. 

{¶12} On August 12, 2011, the trial court overruled Buyer’s objections and 

adopted the recommendation of the magistrate. The trial court found Seller had no 
duty to disclose the buyback status of the vehicle to Buyer based on the business 

transaction between two private parties and the “as is” language in the Bill of Sale. 

{¶13} It is from this decision Buyer now appeals. 

ASSIGNMENTS OF ERROR 

{¶14} Buyer raises two Assignments of Error: 

{¶15} “I. THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANT 

DID NOT HAVE A DUTY TO DISCLOSE THAT THE VEHICLE WAS A ‘BUYBACK’ 

VEHICLE, JUDGMENT ENTRY P. 5.” 

{¶16} “II. THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS NO 

REPRESENTATION MADE IN THIS CASE ABOUT THE BUYBACK STATUS OF THE 

TRUCK, JUDGMENT ENTRY P. 3.” 

ANALYSIS 

DUTY TO DISCLOSE 

{¶17} Buyer argues in his first Assignment of Error the trial court erred by 

finding Seller had no duty to disclose the vehicle was a buyback vehicle. We 

disagree. 

{¶18} Buyer’s first Assignment of Error raises a question of law as to the duty 

to disclose. Questions of law are reviewed by the court de novo. Erie Ins. Co. v. 

Paradise, 5th Dist. No. 2008CA00084, 2009-Ohio-4005, ¶ 12. 

{¶19} Buyer brought his complaint against Seller arguing Seller engaged in 

fraud.1

 To prove a common law claim of fraud, a plaintiff must establish the following 

elements: (1) a representation or, where there is a duty to disclose, concealment of a 

 

1 Buyer did not bring an action pursuant to the Consumer Sales Practices Act, R.C. Chapter 

1345, et al. 
fact, (2) which is material to the transaction at hand, (2) made falsely, with knowledge 

of its falsity, or with such utter disregard and recklessness as to whether it is true or 

false that knowledge may be inferred, (4) with the intent of misleading another into 

relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) 

a resulting injury proximately caused by the reliance. Burr v. Stark County Board of 

Commissioners, 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986), paragraph two of the 

syllabus. 

{¶20} The elements of fraud must be established by clear and convincing 

evidence. Clear and convincing evidence is that measure or degree of proof that will 

produce in the mind of the trier of facts a firm belief or conviction as to the allegations 

sought to be established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). 

The burden to prove fraud rests upon the party alleging the fraud. First Discount 

Corp. v. Daken, 75 Ohio App. 33, 60 N.E.2d 711 (1st Dist. 1944), paragraph seven of 

the syllabus. 

{¶21} There is no dispute the evidence demonstrates Seller knew the vehicle 

was a buyback vehicle. During the sale of the vehicle between Buyer and Seller, 

Seller did not tell Buyer the vehicle was a buyback vehicle nor did Buyer ask about the 

title status of the vehicle. With this evidence, Buyer does not present this Court with 

the issue of a misrepresentation by the Seller, but rather this case involves a failure to 

disclose by the Seller. 

{¶22} This Court has held that fraud is committed by a failure to disclose only 

when the person is under a duty to disclose, and the duty to disclose arises when one 

party has information that the other party is entitled to know because of a fiduciary or 
another similar relation of trust and confidence between them. Advanced Production 

Center, Inc. v. EMCO Maier Corp., 5th Dist. No. 2003CAE03020, 2003-Ohio-6206, ¶ 

14 citing Fed. Mgt. Co. v. Coopers & Lybrand, 137 Ohio App.3d 366, 383-384, 738 

N.E.2d 842 (10th Dist. 2000). A “fiduciary relationship” is a relationship in which 

special confidence and trust is reposed in the integrity and fidelity of another and there 

is a resulting position of superiority or influence, acquired by virtue of this special trust. 

Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 442, 662 N.E.2d 1074 

(1996). In business transactions where parties deal at arm’s length, each party is 

presumed to have the opportunity to ascertain relevant facts available to others 

similarly situated, and therefore, generally neither party has a duty to disclose material 

information to the other. Advanced Production Center, Inc., supra, citing Blon v. Bank 

One (1988), 35 Ohio St.3d 98, 101, 519 N.E.2d 363. 

{¶23} In order to demonstrate fraud, Buyer must establish by clear and 

convincing evidence the elements of fraud. The first element to establish is whether 

there was a failure to disclose. In this case, Seller did not disclose the buyback status 

of the vehicle to Buyer. However, the failure to disclose becomes an issue only if 

there was a duty to disclose based upon a fiduciary relationship between the parties. 

In this case, there is no evidence that a fiduciary relationship existed between the 

parties. The undisputed evidence shows the sale of the vehicle was a business 

transaction where the parties conducted the transaction at arm’s length. Accordingly, 

we agree with the trial court’s thoroughly analyzed judgment that Seller did not have a 

duty to disclose the buyback status of the vehicle to Buyer during the sales transaction 

of the vehicle. 
{¶24} Buyer’s first Assignment of Error is overruled. 

EVIDENCE OF MISREPRESENTATION 

{¶25} Buyer argues in his second Assignment of Error the trial court erred in 

finding that Seller did not misrepresent the history of the vehicle. 

{¶26} We determined above that Buyer failed to establish Seller had a duty to 

disclose the buyback status of the vehicle. Buyer argues in the alternative that the 

facts establish Seller misrepresented the buyback status of the vehicle. Buyer argues 

that by Seller telling Buyer during the sales transaction that the vehicle had no 

problems, Seller misrepresented the status of the vehicle as a buyback vehicle. 

{¶27} As an appellate court, we are not fact finders; we neither weigh the 

evidence nor judge the credibility of witnesses. Our role is to determine whether there 

is relevant, competent, and credible evidence upon which the fact finder could base 

his or her judgment. Peterson v. Peterson, 5th Dist. No. CT2003–0049, 2004–Ohio–

4714, ¶ 10, citing Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911 (Feb. 

10, 1982). 

{¶28} The facts in this case show that before Seller purchased the vehicle, the 

mechanical problems that caused the vehicle to be bought back by the manufacturer 

were repaired. Seller purchased the repaired vehicle and did not experience any 

significant mechanical problems with the vehicle, due to the original problems or 

otherwise, while Seller owned the vehicle. Seller stated to Buyer he experienced no 

problems with the vehicle. We find Seller’s representations to Buyer as stated within 

the record before us support the trial court’s conclusion that Seller did not make a 

false representation to Buyer as to the buyback status of the vehicle. 
{¶29} Buyer’s second Assignment of Error is overruled. 

CONCLUSION 

{¶30} For these reasons, Appellant’s first and second Assignments of Error are 

overruled. 

{¶31} The judgment of Canton Municipal Court is affirmed. 

By: Delaney, P.J. 

Hoffman, J. and 

Farmer, J. concur. 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER 

PAD:kgb 

 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

HOWARD R. CRAWFORD 

 

 Plaintiff - Appellant 

 

-vs- 

:

:

:

:

:

:

:

:

 JUDGMENT ENTRY 

 Case No. 2011CA00197 
TERRY M. STAN 

 Defendant - Appellee 

 

:

:

:

:

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Canton Municipal Court is affirmed. Costs assessed to Appellant. 

HON. PATRICIA A. DELANEY 

HON. WILLIAM B. HOFFMAN 

HON. SHEILA G. FARMER