[Cite as Warman v. Select Auto, 2024-Ohio-366.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

JEREMI WARMAN 

 Appellee

v. 

SELECT AUTO

 Appellant

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C.A. No. 29839

Trial Court Case No. 2021 CV 00303

(Civil Appeal from Common Pleas 

Court)

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O P I N I O N

Rendered on February 2, 2024

. . . . . . . . . . . 

JARED A. WAGNER, Attorney for Appellant

 

SCARLETT M. STEUART, ELIZABETH AHERN WELLS, MATTHEW C. SCHULTZ, & 

RONALD L. BURDGE, Attorneys for Appellee

 . . . . . . . . . . . . .

LEWIS, J.

{¶ 1} Defendant-Appellant Select Auto appeals from the trial court’s judgment 

granting default judgment to Jeremi Warman on his claims related to the alleged 

deceptive and fraudulent sale of a defective used vehicle and its award of damages 

totaling $56,891.29, plus post-judgment interest. Select Auto challenges the trial court’s 
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denial of its motion for relief from the default judgment and the court’s corresponding 

denial of leave to file an answer out-of-time. It further claims that the trial court erred in 

its award of actual and treble/punitive damages. For the following reasons, the trial 

court’s judgment will be affirmed in part, reversed in part, and remanded for recalculation 

of actual and treble/punitive damages.

I. Facts and Procedural History

{¶ 2} According to the complaint, on December 5, 2020, Warman purchased a 

2014 Dodge Charger from Select Auto for $14,951.39 plus applicable taxes and fees. 

Warman had a trade-in allowance of $500, paid $6,000 as a down payment, and financed 

the balance. The vehicle came with a limited warranty.

{¶ 3} Shortly after the purchase, Warman discovered that the vehicle had structural 

damage, the airbags were inoperable, the vehicle needed a catalytic converter, and four 

Dodge recalls could not be performed because of the vehicle’s condition. After 

discovering the truth about the vehicle’s condition and before any substantial changes 

were made to the car, Warman asked Select Auto to cancel the sale and return his money. 

Select Auto refused. Warman alleged that Select Auto had never informed him about 

the Charger’s unrepaired or improperly-repaired structural damage and that he never 

would have purchased the vehicle had he been aware of the car’s actual condition.

{¶ 4} On January 27, 2021, Warman filed a civil action against Select Auto, an 

alleged corporation, for the fraudulent sale of the Charger. He brought claims under the 

Consumer Sales Practices Act (CSPA), the Motor Vehicle Sales Rule, Magnuson Moss 

Warranty Act (MMWA), and common law principles of fraud and deceit. Select Auto was 
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served with the complaint on February 1, 2021.

{¶ 5} On February 23, 2021, Rajest Vaish, as general manager and family partner 

of Select Auto, filed an answer denying the allegations and stating that Select Auto was 

a family partnership, not a corporation. The same day, Warman filed a motion to strike 

the answer and to compel Select Auto to retain counsel. Warman argued that a 

corporation cannot appear pro se and that Vaish, as a non-attorney, could not file an 

answer on Select Auto’s behalf. Select Auto did not respond to the motion.

{¶ 6} On March 10, 2021, the trial court granted Warmer’s motion to strike, noting 

that Vaish was not authorized to practice law and that a corporation may not maintain an 

action through an officer who is not a licensed attorney. The court granted Select Auto 

30 days to obtain counsel and file a responsive pleading. The order indicated that a copy 

was mailed to Select Auto at the business address.

{¶ 7} On April 14, 2021, Vaish filed a response to the trial court’s order. He wrote 

that he had just checked the online docket and learned of Warman’s request that he hire 

an attorney; he stated that he had not received any mailing from the court. Vaish 

indicated that Select Auto was a family partnership, not a corporation or limited liability 

company, and that as a “very small” used car dealership, it was unable to afford an 

attorney. He expressed that he did not believe that he needed an attorney to proceed in 

the case and that he would be representing the business. He concluded by asking the 

court to “let me handle this case my self [sic].” Vaish’s filing was docketed as an answer, 

and the trial court and parties have subsequently referred to it as such.

{¶ 8} Approximately two weeks later, Warman filed two contemporaneous
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motions: (1) a motion to strike defendant’s pro se answer and motion to compel defendant 

to obtain counsel, and (2) a motion for default judgment. The first motion was similar to 

Warman’s prior motion to strike and to compel Select Auto to retain counsel. In the 

second motion, Warman requested a default judgment on liability only due to the failure 

of Select Auto to have an attorney enter an appearance and to file an answer. On May 

25, 2021, the trial court granted the motion for a default judgment on liability.

{¶ 9} Vaish filed a notice of appeal on Select Auto’s behalf. See Warman v. 

Select Auto, 2d Dist. Montgomery No. 29171. We issued a show cause order, asking 

Select Auto to show cause why the appeal should not be dismissed for lack of a final 

appealable order and for failing to effectively institute an appeal due to Vaish’s status as 

a non-attorney. In his response, Vaish stated that he was the sole proprietor of Select 

Auto and therefore could represent Select Auto without an attorney. On October 26, 

2021, we dismissed the appeal for lack of a final appealable order without deciding 

whether it was properly instituted.

{¶ 10} On June 24, 2021, the day after Vaish had filed a notice of appeal on Select 

Auto’s behalf, Warman filed a motion for damages consisting of trebled actual damages 

totaling $40,999.11 ($13,666.37 x 3), non-economic damages of $5,000, attorney fees of 

$2,398.75, and litigation costs of $374.39. The motion was supported by affidavits from 

Warman and his attorney as well as several documents concerning the vehicle. Shortly 

after we dismissed Select Auto’s prior appeal, Warman requested leave to supplement 

his motion for damages, which the trial court granted. The trial court also scheduled a 

status conference for December 22, 2021.
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{¶ 11} On December 13, 2021, counsel for Select Auto filed a notice of 

appearance. A week later, Select Auto asked the trial court to set aside the default 

judgment pursuant to Civ.R. 60(B) and to allow the dealership to file an answer out of 

time under Civ.R. 6(B). It supported the motion with an affidavit from Vaish. Select Auto 

further requested, in the alternative, that the court permit discovery regarding Warman’s 

damages. Warman opposed the motion for Civ.R. 60(B) relief but had no objection to 

conducting discovery on damages.

{¶ 12} On May 13, 2022, the trial court denied the motion to set aside the default 

judgment. After concluding that Civ.R. 60(B) was not applicable because no final 

appealable order had been rendered, the trial court found that Select Auto’s failure to file 

a timely answer was not due to excusable neglect, as required by Civ.R. 6(B). The court

granted, however, the request for discovery on damages.

{¶ 13} In April 2023, after an unsuccessful attempt at mediation, additional 

supplementation of Warman’s motion for damages, and discovery, the trial court held a 

hearing on Warman’s damages. Warman and Vaish both testified, and the parties 

submitted several documentary exhibits and a joint stipulation. The parties also filed 

post-hearing briefs. In its May 25, 2023 judgment entry, the trial court found that Warman 

was entitled to actual damages of $13,666.37, non-economic damages of $200, 

treble/punitive damages of $27,732.74, and attorney fees of $15,292.18. Select Auto 

was also required to pay court costs.

{¶ 14} Select Auto appeals from the trial court’s judgment, raising two assignments 

of error.
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II. Excusable Neglect under Civ.R. 6(B)

{¶ 15} In its first assignment of error, Select Auto claims that the trial court erred 

by denying its request for leave to file an answer out of time, pursuant to Civ.R. 6(B), and 

argues that it demonstrated excusable neglect. Specifically, it emphasizes that English 

is not Vaish’s first language and that when Select Auto was formed around 2006, Ohio 

common law permitted a partner to represent a partnership. Select Auto further asserts 

that its motion was filed within a reasonable time and that it had a meritorious defense to 

Warman’s claims. 

{¶ 16} A default judgment may be granted when a defendant fails to make an 

appearance by filing an answer or otherwise defending an action in accordance with 

Ohio’s Rules of Civil Procedure. Davis v. Immediate Med. Servs., Inc., 80 Ohio St.3d 

10, 14, 684 N.E.2d 292 (1997), citing Civ.R. 55(A). Under Civ.R. 6(B)(2), a trial court 

may, in its discretion, permit the filing of an untimely answer or responsive motion if the 

failure to act was the result of excusable neglect. Id.

{¶ 17} “Neglect under Civ.R. 6(B)(2) has been described as conduct that falls 

substantially below what is reasonable under the circumstances.” Davis at 14. In 

determining whether neglect is excusable, courts must consider all the surrounding facts 

and circumstances. Id. “[T]he test for excusable neglect under Civ.R. 6(B)(2) is less 

stringent than that applied under Civ.R. 60(B),” and courts should be mindful of the 

preference that cases be decided on their merits, where possible, rather than on 

procedural grounds. State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio 

St.3d 464, 466, 650 N.E.2d 1343 (1995). See also White v. Grange Ins. Co., 2d Dist. 
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Montgomery No. 29151, 2022-Ohio-497, ¶ 27. Nevertheless, while Civ.R. 6(B) grants 

broad discretion to the trial court, its discretion is not unlimited. Citizens Natl. Bank of 

SW Ohio v. Harrison, 2016-Ohio-2746, 64 N.E.3d 315, ¶ 17 (2d Dist.), citing Miller v. Lint, 

62 Ohio St.2d 209, 214, 404 N.E.2d 752 (1980).

{¶ 18} Select Auto agrees that its motion is governed by Civ.R. 6(B) rather than 

Civ.R. 60(B), under which a trial court may relieve a party from a final judgment. While 

Select Auto argues that it has a meritorious defense to Warman’s claims and that its 

motion was timely, considerations relevant to a Civ.R. 60(B) motion, we must focus on 

whether Select Auto demonstrated excusable neglect under Civ.R. 6(B).

{¶ 19} In ruling on Select Auto’s motion, the trial court first found no excusable 

neglect based on the fact that Vaish is not a native English-speaker. We find no abuse 

of discretion in this determination. Vaish stated in his affidavit that he is a naturalized 

United States citizen who was born in India and that English is not his first language. 

Even accepting this as true, Vaish filed several documents with the trial court that 

demonstrated his understanding of the claims and issues being raised. As noted by the 

trial court, these filings, although not in perfect English, were easy to read and understand, 

and they consisted of cogent responses to both Warman’s claims and the court’s entry 

striking the first pro se answer. The trial court reasonably found no excusable neglect 

based on Vaish’s English language skills.

{¶ 20} The trial court further found no excusable neglect due to Vaish’s 

misunderstanding about whether he, as a partner of Select Auto, could represent the 

partnership in court. In rejecting Select Auto’s argument, the trial court emphasized that 
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Vaish was told in the March 10, 2021 entry striking his first answer and in the May 25, 

2021 entry granting a default judgment on liability that he could not represent his business 

under Ohio law. In addition, Select Auto was given an opportunity and additional time to 

obtain counsel, but Vaish chose not to do so due to the expense. The court further noted 

that Vaish pursued an appeal on Select Auto’s behalf, and this appellate court also 

questioned his ability to represent Select Auto. The trial court continued:

Defendant had multiple opportunities to obtain counsel and willfully chose 

to ignore the Court’s admonitions that he was not legally permitted to 

practice law and represent his business. He even admits that he spoke 

with an attorney at one point about his case but ultimately decided to 

proceed with representing his business himself. This went on for over nine 

months until he finally hired legal counsel in December of 2021, a month 

and a half after the Court of Appeals dismissed his case. This is a prime 

example of a complete disregard for the justice system and Mr. Vaish’s 

ignorance of Ohio partnership law does not and cannot constitute excusable 

neglect.

Decision Denying Motion to Set Aside Default Judgment, p. 5.

{¶ 21} We cannot conclude that the trial court abused its discretion in denying 

Select Auto’s motion to file its answer out of time. The court reasonably found that Select 

Auto’s failure to file a timely answer was a choice based on Vaish’s disagreement with 

the trial court’s ruling that he, as a non-lawyer, could not represent Select Auto. Whether 

Vaish reasonably believed that the trial court’s ruling was incorrect – and he argues on 
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appeal that, prior to 2009, Ohio law allowed partnerships to be represented by one of its 

partners pro se – is irrelevant. We note, however, that R.C. Chapter 1776, the Uniform 

Partnership Act, has been in effect since 2008, more than a decade before this action 

was filed. It is well established that pro se litigants are presumed to know the law and 

correct procedure and are held to the same standard as other litigants. E.g., Ndiaye v. 

Stahl, 2d Dist. Montgomery No. 29276, 2022-Ohio-1523, ¶ 12; State v. Grieco, 2d Dist. 

Montgomery No. 28822, 2021-Ohio-735, ¶ 29. Vaish’s disagreement with the trial 

court’s analysis and/or ruling about his ability to represent the partnership did not justify

Select Auto’s failure to file a timely response to the complaint.

{¶ 22} Moreover, Select Auto ultimately obtained counsel several months after 

Warman had obtained a default judgment. We previously noted that, “[t]o some extent, 

the existence of a pending motion for default judgment militates against granting leave” 

to file an answer out of time. Stumpff v. Harris, 2d Dist. Montgomery No. 23354, 2010-

Ohio-1241, ¶ 16. The fact that a default judgment on liability had already been awarded

weighed against granting leave to file an untimely answer in this case.

{¶ 23} Although another court might have reasonably reached a different 

resolution on Select Auto’s motion, we cannot conclude that the trial court abused its 

discretion in finding no excusable neglect. Select Auto’s first assignment of error is 

overruled.

III. Calculation of Damages

{¶ 24} In its second assignment of error, Select Auto claims that the trial court 

committed reversible error in its calculation of damages. It asserts that the manifest 
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weight of the admissible evidence did not support a finding of any actual damages or that 

Warman was entitled to treble damages, punitive damages, or damages for fraud. 

Select Auto further contends that, in determining damages, the trial court improperly relied 

on inadmissible evidence. Select Auto does not challenge on appeal the trial court’s 

award of non-economic damages, attorney fees, and court costs.

{¶ 25} In awarding actual and treble/punitive damages, the trial court apparently 

focused on the CSPA, as Warman suggested in his memoranda in support of damages. 

When the CSPA has been violated by an unfair or deceptive act or practice, the consumer 

may “rescind the transaction or recover the consumer’s actual economic damages plus 

an amount not exceeding five thousand dollars in noneconomic damages.” R.C. 

1345.09(A). The statute defines “actual economic damages” as “damages for direct, 

incidental, or consequential pecuniary losses” resulting from the violation; it does not 

include noneconomic damages. R.C. 1345.09(G).

{¶ 26} The measure of actual damages for a CSPA claim involving deception is 

generally the expectancy interest. Averback v. Montrose Ford, Inc., 2019-Ohio-373, 120 

N.E.3d 125, ¶ 38 (9th Dist.); Green Maple Ents., LLC v. Forrester, 2021-Ohio-4640, 182 

N.E.3d 1265, ¶ 47 (7th Dist.). As the parties recognize, this is the difference between 

the value of the property as it was represented to be and its actual value at the time of 

purchase. See, e.g., Averback at ¶ 38. Expectation damages reaffirm the contract and 

seek to place the injured party in the position it would have been had the contract been 

fully performed. Id., citing Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Edn., 10th 

Dist. Franklin No. 12AP-647, 2013-Ohio-3890, ¶ 29; Phillips v. Ratchet Automotive & 
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Performance, 10th Dist. Franklin No. 19AP-399, 2021-Ohio-1033, ¶ 16. “The consumer 

retains the property and seeks compensation for the diminished value of the property.” 

Id., citing Cremeans v. Robbins, 4th Dist. Ross No. 99CA2520, 2000 WL 781215, *4 (June 

12, 2000).

{¶ 27} Expectation damages are distinguishable from reliance damages, which are 

generally associated with the recission of the contract. “Reliance damages place the 

non-breaching party ‘in the position it was in before the contract was made.’ ” Averback

at ¶ 40, quoting Alternatives Unlimited-Special at ¶ 29.

{¶ 28} We generally review a trial court’s calculation of damages for an abuse of 

discretion. E.g., Stonebridge Neighborhood Assn., Inc. v. Knapinski, 2018-Ohio-424, 

128 N.E.3d 742, ¶ 23 (2d Dist.). To constitute an abuse of discretion, a trial court’s action 

must be arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio 

State Univ., 12 Ohio St.3d 230, 232, 466 N.E.2d 875 (1984).

{¶ 29} Here, Select Auto asserts that the trial court erred in determining that 

Warman’s actual damages amounted to $13,166.37. In reaching that amount, the court 

agreed with Warman’s proposed calculation, which used the difference between the “total 

sale price” of the Charger ($20,039.28) and the actual value of the vehicle at the time of 

delivery based on a subsequent CarMax purchase offer ($7,000), plus $127.09 for repairs 

that Warman made to the vehicle. Select Auto argues that the court’s use of the “total 

sale price” and the value provided by CarMax was incorrect.

A. Evidence of Actual Value

{¶ 30} We begin with Select Auto’s claim that the trial court erred in determining 
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that the actual value of the Charger was $7,000 rather than approximately $16,000, as 

Select Auto suggested. Select Auto asserts that Warman provided no admissible 

evidence as to the actual value of the vehicle and that its own evidence established that 

the actual value was greater than the sale price.

{¶ 31} To establish the actual value of the Charger, Warman relied upon a CarMax 

appraisal of the car and his own testimony that the vehicle was worth $7,000. Select 

Auto states in its appellate brief that “while Select Auto stipulated to the authenticity of the

document, the statements within that document purporting to testify as to the value of the 

vehicle constitute hearsay and are not admissible.” The dealership further maintains that 

Warman could not base his own estimation of the Charger’s actual value on this hearsay 

evidence.

{¶ 32} On March 31, 2023, the parties filed stipulations in advance of April 3, 2023 

damages hearing. Paragraph nine of that document stated: “The documents produced 

and/or generated by CarMax Auto Superstores, Inc. are authentic and admissible 

business records under Evi.R. [sic] 803(6) and Evi.R. [sic] 902 and there is no need to 

call a records custodian or authenticating witness at any hearing or trial in this matter.” 

(Emphasis added.) Paragraph ten contains a similar stipulation regarding documents 

produced by CarMax Auto Superstores Service, Inc. The CarMax appraisal offer, 

admitted as Plaintiff’s Exhibit 8, fell within the stipulation. Contrary to Select Auto’s 

assertion that it agreed only to the authenticity of the appraisal, the plain language of the 

stipulation reflects an agreement as to the document’s admissibility under an exception 

to the hearsay rule. Accordingly, the trial court did not err in considering the CarMax 
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appraisal.

{¶ 33} Regardless, Warman was permitted to testify to the actual value of the 

Charger pursuant to the owner-opinion rule. “[T]he owner-opinion rule provides an 

exception to the general rule that only an expert may express an opinion of value.” 

Johnson v. Clark Cty. Bd. of Revision, 155 Ohio St.3d 264, 2018-Ohio-4390, 120 N.E.3d 

823, ¶ 21, citing Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 

140 Ohio St.3d 248, 2014-Ohio-3620, 17 N.E.3d 537, ¶ 18. “Ohio law has long 

recognized that an owner of either real or personal property is, by virtue of such 

ownership, competent to testify as to the market value of the property.” Smith v. Padgett, 

32 Ohio St.3d 344, 347, 513 N.E.2d 737 (1987).

{¶ 34} The factfinder is not required to accept the owner’s valuation and has wide 

discretion to determine what weight to give it. Johnson at ¶ 22. As noted by the Ohio 

Supreme Court, “[o]wnership may involve an intimate knowledge of the nature, quality, 

cost, and condition of the property. However, ownership of property may in other cases 

constitute very little, if any, qualification to form an opinion as to the value of the property.” 

Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 626, 605 N.E.2d 936 

(1992).

{¶ 35} At the damages hearing, Warman testified that he estimated that the 

Charger was worth $7,000 when he bought it. He indicated that his estimate was based 

on an appraisal that he received from CarMax on December 10, 2020, and his knowledge 

of “all the things that’s wrong with it.” Warman acknowledged that he was not a 

mechanic, car dealer, or in the business of valuing vehicles, but he stated that he had 
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“general knowledge.”

{¶ 36} Warman’s testimony of the Charger’s $7,000 value at the time of purchase 

constituted competent evidence, which the trial court, as the finder of fact, was entitled to 

credit. See Woods v. Woods, 2d Dist. Greene No. 2016-CA-40, 2018-Ohio-37, ¶ 22-23 

(the trial court reasonably credited wife’s estimation of the value of certain personal 

property over husband’s estimation that property had little to no value). By the time the 

trial occurred, Warman had owned the Charger for several years. By virtue of his 

ownership, Warman was familiar with the actual physical condition of the vehicle and the 

amount he could receive for it if he wished to sell it. His estimation was subject to crossexamination. The fact that the CarMax appraisal formed a substantial basis for his 

opinion did not negate his ability to offer his opinion.

{¶ 37} Select Auto asserts that the trial court should have credited its documentary

evidence of the Charger’s actual value, which it claimed was $15,988.37. Select Auto 

reached this value by adding the amount it paid for the vehicle at auction ($8,000 + a 

$405 buyer fee) and the amount it paid in repairs prior to selling the vehicle to Warman 

($7,583.37). The purchase amount was supported by the bill of sale and invoice from 

ADESA Lansing. The bill of sale indicated that the Charger had structural damage and 

was sold as is.

{¶ 38} Vaish explained the process for inspecting and repairing vehicles that 

Select Auto purchased. He stated that he would have his certified mechanic, an 

independent contractor, inspect the vehicle first. Tr. at 78. If the mechanic “cannot 

verify,” he would send the vehicle to the dealer for an inspection. After receiving the 
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report from the dealer, the mechanic would fix it. Id. Vaish indicated that he could not 

afford to have the dealer perform every repair and explained that his mechanic charged 

less. Select Auto’s mechanic produced a document itemizing all the work he performed 

on the Charger, but that document was not produced or offered into evidence. Tr. at 83-

84. According to Vaish, Exhibit B to his affidavit contained copies of invoices and 

receipts to ship and repair the Charger. Vaish Aff. ¶ 8. The documented expenses 

totaled $7,583.37.

{¶ 39} Vaish testified that the value of the Charger at the time of Warman’s 

purchase was approximately $16,000 or $17,000. Tr. at 51. His estimation was 

apparently based on all of the expenses that Select Auto incurred regarding the vehicle. 

Vaish included the financing charges that the dealership owed to the bank, which paid for 

the vehicle on Select Auto’s behalf at the auction. Tr. at 48, 86-87. The bank was repaid 

when the vehicle was sold. (This use of short-term loans to purchase vehicles is known 

as floor planning.)

{¶ 40} Upon review of the evidence presented at the damages hearing, the trial 

court reasonably accepted Warman’s estimation of the Charger’s actual value at the time 

of purchase, rather than Select Auto’s asserted value. The bill of sale from the auction 

indicated that the Charger had structural damage, but there is no indication that Vaish 

was aware of the full extent of the damage and needed repairs when Select Auto paid 

$8,000 for the vehicle. To the contrary, Vaish’s testimony reflected that he did not know

the vehicle’s condition or whether the damage was fixable until after it was transported to 

Ohio and inspected by his mechanic and a Dodge dealership. Accordingly, the trial court 
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could have found that $8,000 did not represent an accurate starting point for determining 

the Charger’s actual value at the time Warman purchased it.

{¶ 41} Moreover, the trial court could have reasonably concluded that Select 

Auto’s documentary evidence did not support a conclusion that $7,583.37 in value was 

added to the vehicle after the auction. Select Auto’s invoices and receipts included $400 

for shipping and $3,310 for labor charges, which the trial court could have reasonably 

concluded added nothing to the Charger’s value. Additionally, it appears that Select 

Auto provided multiple invoices/receipts for the same parts, such as spark plugs, an 

ignition coil, brake pads, and rotors. The court could have reasonably questioned 

whether Select Auto’s purported repair costs were entirely accurate. The trial court also 

could have concluded that finance charges paid to the bank should not be included in the 

vehicle’s actual value. The trial court’s use of Warman’s opinion of the vehicle’s value

($7,000), as opposed to Select Auto’s (between $15,988.37 and $17,000), was neither

against the manifest weight of the evidence nor an abuse of discretion.

B. Use of Total Sale Price

{¶ 42} Select Auto further challenges the trial court’s inclusion of financing costs 

and fees in determining Warman’s actual damages.

{¶ 43} Warman’s bill of sale for the Charger showed that the vehicle’s purchase 

price was $14,951.39. The sale included additional charges consisting of (1) a 

documentary service charge of $250; (2) sales tax of $1,140.10; (3) title fee of $15; and 

(4) a temporary tag fee of $18.50. With these taxes and fees, the total due to Select 

Auto was $16,374.99. Warman financed $9,874.99 of this amount which, with an annual 
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percentage rate of 24.49 percent, would result in finance charges totaling $4,164.29. 

Thus, Warman’s total cost to purchase the vehicle was $20,039.28 ($16,374.99 + 

$4,164.29). Warman argued in the trial court that the total sale price reflected the value 

of the Charger as represented.

{¶ 44} At the outset, we reiterate that the trial court had broad discretion in 

determining the appropriate amount of actual damages. As stated above, the CSPA 

permits a plaintiff to recover “direct, incidental, or consequential pecuniary losses” 

resulting from the violation. R.C. 1345.09(G). Moreover, the fact that Select Auto did 

not have control over some of the amounts included in the total sales price and did not 

receive those amounts has little bearing, if any, on whether they fall within R.C. 

1345.09(G).

{¶ 45} Nevertheless, we conclude that the trial court abused its discretion when it 

included the costs associated with the vehicle’s purchase. The trial court’s damages 

calculation represented a recission approach: it returned to Warman the total amount he 

spent for the vehicle and offset that amount by the monetary value of the vehicle (as 

determined by the trial court) that Select Auto provided. However, Warman was not 

entitled to receive reliance damages associated with recission. Although Warman 

continued to own the vehicle when the damages hearing occurred, he did not seek 

recission as a remedy at the damages hearing, which made reliance damages 

unavailable. Although we agree with Warman that expectations damages are not 

necessarily limited to the contract price of the vehicle, depending on the specific facts and 

circumstances, the inclusion of finance charges and additional fees in this case was 
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inappropriate. Accordingly, the matter must be remanded to the trial court for 

recalculation of Warman’s actual damages.

C. Treble Damages 

{¶ 46} Select Auto further claims that the trial court erred in awarding treble 

damages, recovery for fraud, and punitive damages based on a knowing failure by Select 

Auto to disclose known safety defects and issues with the vehicle. Warman did not 

respond to this argument. Nevertheless, we find it lacks merit.

{¶ 47} Under the CSPA, a consumer may recover three times the amount of his or 

her actual economic damages, or $200, whichever is greater, where the violation was 

previously declared to be a deceptive act or practice. R.C. 1345.09(B). Punitive 

damages are available in an action for fraud where the fraud is aggravated by the 

existence of malice or ill will or if the wrongdoing is particularly gross or egregious. Wolfe 

v. Walsh, 2d Dist. Montgomery No. 21653, 2008-Ohio-185, ¶ 34. In his proposed 

calculation of damages, Warman asserted that the treble damages under the CSPA were 

also an appropriate measure of punitive damages for his fraud and other claims.

{¶ 48} Select Auto’s failure to file an answer resulted in an admission to the 

allegations in Warman’s complaint regarding Select Auto’s conduct. Under Civ.R. 8(D), 

“[a]verments in a pleading to which a responsive pleading is required, other than those 

as to the amount of damage, are admitted when not denied in the responsive pleading.” 

Warman alleged in his complaint that, “[p]rior to selling the vehicle to Mr. Warman, Select 

Auto knew or should have known that the vehicle had structural damage. However, no 

one at Select Auto bothered to tell Mr. Warman the truth about the vehicle’s structural 
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damage that was either unrepaired or repaired in an unworkmanlike manner, and instead 

kept this information a secret from him.” Complaint ¶ 5; see also Complaint ¶ 51. The 

complaint included additional allegations that Select Auto breached its warranties and 

representations to Warman, and thus engaged in unfair, deceptive, and unconscionable 

practices. These allegations were admitted when Select Auto failed to file an answer.

{¶ 49} Moreover, at the damages hearing, Warman testified that Select Auto 

informed him that the Charger had been inspected and taken to another Dodge dealership 

and “had a recall done on it.” Tr. at 13. After taking the car to the same dealership, 

Warman learned that the recall work was not performed. Id. No one at Select Auto had 

informed Warman that the recall work could not be done. Vaish asserted during his own 

testimony that the airbags would work, despite the report from Performance Dodge that 

recall work could not be performed. He acknowledged that he told Warman that the car 

was 100 percent safe. Tr. at 85. The trial court could have reasonably concluded that 

treble damages were justified.

{¶ 50} The trial court awarded punitive/treble damages in the amount of 

$27,732.74. This amount appears to be typographical error, as $13,666.37 (actual 

damages) multiplied by two equals $27,332.74. Regardless, having concluded that the 

matter must be remanded for a recalculation of actual damages, we likewise must remand 

the matter for a recalculation of treble/punitive damages based on the new actual 

damages amount.

{¶ 51} Select Auto’s second assignment of error is sustained in part and overruled 

in part.
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IV. Conclusion

{¶ 52} The trial court’s judgment will be affirmed in part, reversed in part, and 

remanded for recalculation of actual and treble/punitive damages.

. . . . . . . . . . . . .

TUCKER, J. and HUFFMAN, J., concur.