[Cite as Nicholson v. Davis Auto Performance, 2024-Ohio-205.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JAMES A. NICHOLSON, : JUDGES:

: Hon. John W. Wise, P.J.

 Plaintiff - Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

DAVIS AUTO PERFORMANCE, : Case No. 2023 CA 0022

:

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Richland County 

Court of Common Pleas, Case No. 

2021 CV 406

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 22, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. KIM MURRAY HEATHER R. ZILKA

Brown Bemiller Murray & Haring. LLC ERIC M. HOPKINS

99 Park Avenue West, Suite B Pelini Campbell & Ricard, LLC

Mansfield, Ohio 44902 5880 Innovation Drive

Dublin, Ohio 43016
Richland County, Case No. 2023 CA 0022 2

Baldwin, J.

{¶1} Appellant Davis Auto Performance appeals the decision of the trial court 

following a bench trial in which the court found it had violated the Ohio Consumer Sales 

Practices Act, and awarded appellee James A. Nicholson treble damages and attorney 

fees. 

STATEMENT OF THE FACTS AND THE CASE

{¶2} The appellee, a lieutenant with the county sheriff’s office, owns a 1998 

Pontiac Bonneville automobile which he purchased new. During the winter of 2020 he 

was having trouble with the vehicle’s heating system, and in early March of 2020 took it 

to the appellant for replacement of the heater core at the cost of $482.99.

{¶3} The day the appellee drove his vehicle home from the appellant’s shop, 

appellee noticed a long trail of coolant in his driveway. The vehicle had not leaked coolant 

prior to the appellant’s heater core replacement service. The appellee contacted the 

appellant, and returned the vehicle to the appellant’s shop. The appellant examined the 

vehicle and advised the appellee that it needed a new radiator. The appellee authorized 

the work, and the appellant replaced the radiator at the cost of $353.09. The appellant

advised appellee at that time that his vehicle needed new rack and pinion steering, as the 

current steering system was unsafe. Again, the appellee authorized the work to be done 

by appellant. 

{¶4} The appellant billed the appellee for the replacement of the heater core and 

the replacement of the automobile’s steering system on the same invoice, which totaled 

$1,776.08, and included the $482.99 for replacement of the heater core.
Richland County, Case No. 2023 CA 0022 3

{¶5} The appellant had the appellee’s vehicle in its shop for an extended period 

of time to replace the vehicle’s steering system. Within that time frame, the appellee was 

driving past the appellant’s business location with a fellow deputy sheriff and observed 

his vehicle parked in the appellant’s parking lot where he had initially parked it for the 

steering system service. The appellee put his cell phone on speaker, called the appellant,

and spoke with the owner, asking him how the work was coming on his vehicle. The owner 

told the appellee that the vehicle was “on the rack right now” and they “were working on 

it” as they were speaking. The appellee asked him again if the vehicle was on the rack, 

and the owner reiterated that it was “on the rack right now” being worked on. The appellee 

pointed out his vehicle, sitting in the appellant’s parking lot, to his fellow deputy. Both the 

appellee and the deputy testified regarding the appellant’s misrepresentation regarding 

this fact. 

{¶6} The appellant told the appellee that the steering system work was complete 

and his vehicle was ready to be picked up, but when he attempted to drive the vehicle the 

steering was so tight that he could not pull it out of the parking lot. The appellee 

immediately went back into the appellant’s shop told the owner of the steering problem, 

and again left it with the appellant for further work. It took the appellant another couple of 

weeks before the work on the vehicle was complete.

{¶7} The appellee picked the vehicle up after the appellant’s second steering 

system repair, and while the steering still felt rough it was at least drivable. However, the 

steering once again locked up, and the appellant took the vehicle to Goodyear Auto 

Service Center. Goodyear recommended that the appellee take the vehicle to a dealer 

regarding the steering system issues. 
Richland County, Case No. 2023 CA 0022 4

{¶8} In addition, the appellee determined that his air conditioning system was not 

working. Because he was unhappy with the work that had been performed by the 

appellant, the appellee took the vehicle to Goodyear to have the air condition system 

looked at. To determine the air conditioning problem, Goodyear had to take the vehicle’s 

dashboard apart at a cost of $432.00. When Goodyear removed the dashboard, it 

determined that the blend door wiring had been unplugged during earlier servicing, and 

all that was necessary to restore the air conditioning system to working order was to plug 

the blend door wiring back in. 

{¶9} The appellee thereafter took his vehicle to Mansfield GMC, where the rack 

and pinion steering system installed by the appellant was removed and a new rack and 

pinion steering system was installed at a cost of $1,203.05. Mansfield GMC’s invoice for 

replacing the rack and pinion steering system was admitted into evidence during

the trial without objection, and stated the following: 

“c/s is difficult to turn, and steering seems loose

caused by

inspected steering system found attachment bolt

for steering rack/pinion missing, also found

steering rack/pinion leaking fluid, steering

rack/pinion appears to be the wrong replacement,

original part has MAGNA steering system

inspected steering column and found lower support

brackett [sic] missing bolts and found rubber hose

between brackets
Richland County, Case No. 2023 CA 0022 5

lower steering shaft bearing

housing broken where mounting bolts would attach”

{¶10} The appellee filed a complaint against the appellant on August 17, 2021, 

and a first amended complaint on August 30, 2021 which set forth allegations that the 

appellant had violated the Ohio’s Consumer Sales Practices Act (“CSPA”.) A bench trial 

was conducted on March 9, 2023. The appellant did not object to the appellee’s testimony 

regarding the repairs to his vehicle, nor to the admission of various invoices, including the 

Mansfield GMC invoice. 

{¶11} On March 13, 2023, the trial court issued a Verdict After Bench Trial in which 

it found that the appellant had violated the CSPA, thus entitling the appellee to treble 

economic damages in the amount of $7,032.24. The March 13, 2023, Verdict also found 

that the appellee may be entitled to attorney fees, and scheduled a hearing on the issue 

of attorney fees on March 31, 2023, at which time the appellee was to present evidence 

regarding his attorney fees, including expert testimony. 

{¶12} The attorney fee hearing proceeded as scheduled. The appellee presented 

the expert testimony of Attorney David D. Carto as to the reasonableness and necessity 

of the appellee’s attorney fees, and submitted an itemized invoice. On April 5, 2023, the 

trial court issued a Judgment Entry Regarding Plaintiff’s Request for Reasonable Attorney 

Fees in which it awarded the appellee attorney fees in the amount of $7,500.00.

{¶13} The appellant filed a timely appeal, and sets forth the following four 

assignments of error:
Richland County, Case No. 2023 CA 0022 6

{¶14} “I. THE TRIAL COURT ERRED IN FINDING A VIOLATION OF THE OHIO 

CONSUMER SALES PRACTICES ACT WHEN IT DID NOT FIND DAVIS AUTO 

COMMITTED AN UNFAIR, DECEPTIVE, OR, UNCONSCIONABLE ACT.”

{¶15} “II. THE TRIAL COURT ERRED IN AWARDING TREBLE DAMAGES 

UNDER THE OHIO CONSUMER SALES PRACTICES ACT.”

{¶16} “III. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES 

UNDER THE OHIO CONSUMER SALES PRACTICES ACT.”

{¶17} “IV. THE TRIAL COURT’S JUDGMENT IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE AS IT WAS BASED PURELY ON AN INFERENCE 

FOUNDED ON HEARSAY AND INAPPROPRIATE LAY OPINION.”

ANALYSIS

{¶18} The appellant argues that the trial court erred when it found that it violated 

the CSPA, that it erred in awarding treble damages and attorney fees based upon said 

violation, and that the trial court’s decision is against the manifest weight of the evidence. 

The assignments of error are integrally intertwined, and will therefore be addressed 

together.

{¶19} The CSPA was discussed by this court in Swoger v. Hogue, 5

th Dist. 

Tuscarawas No. 2013 AP 011 0045, 2015-Ohio-506:

The Ohio Consumer Sales Practices Act (“CSPA”), which is codified 

in R.C. Chapter 1345, prohibits unfair or deceptive acts and unconscionable 

acts or practices by suppliers in consumer transactions. The act is intended 

to be remedial and should be construed liberally in favor of consumers. 

Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 29, 548 N.E.2d 933 (1990).
Richland County, Case No. 2023 CA 0022 7

Whereas R.C. 1345.02 prohibits unfair or deceptive acts or practices, 

R.C. 1345.03 prohibits unconscionable acts or practices in connection with 

consumer transactions, whether such acts or practices occur before, during, 

or after a transaction. This section lists a number of circumstances to be 

taken into consideration in determining whether an act or practice is 

unconscionable. In order to recover for unconscionable acts or practices, 

the consumer must prove that the supplier acted unconscionably and 

knowingly. Karst v. Goldberg, 88 Ohio App.3d 413, 418, 623 N.E.2d 1348 

(1993).

In order to establish a CSPA violation, the court must determine that 

the transaction between the parties was one to which the CSPA applied. A 

“consumer transaction” is defined as any “sale, lease, assignment, award 

by chance, or other transfer of an item of goods * * * to an individual for 

purposes that are primarily personal, family, or household[.]” R.C. 

1345.01(A). However, this statute must be read in conjunction with R.C. 

1345.02 and R.C. 1345.03, which provide that a supplier is prohibited from 

doing certain things “in connection with a consumer transaction.” The 

consumer need not prove the supplier intended to commit an unfair or 

deceptive act to establish a violation of the CSPA, but need only prove such 

an act was committed. Garner v. Borcherding Buick, Inc., 84 Ohio App.3d 

61, 64, 616 N.E.2d 283 (1992).

To determine if a specific act or practice is a deceptive sales practice 

which violates the general directive of R.C. 1345.02(A), one must look to 
Richland County, Case No. 2023 CA 0022 8

three separate sources. First, R.C. 1345.02(B) contains an enumerated list 

of practices that are unfair or deceptive. Second, pursuant to R.C. 

1345.05(B)(2), the attorney general is authorized to adopt substantive rules 

defining acts or practices that violate R.C. 1345.02. These rules are found 

in the Ohio Administrative Code. Third, Ohio courts have defined a variety 

of specific acts and practices which are unfair or deceptive. Frey v. Vin 

Devers, Inc., 80 Ohio App.3d 1, 6, 608 N.E.2d 796 (1992). See, also, 

Fletcher v. Don Foss of Cleveland, Inc., 90 Ohio App.3d 82, 86, 628 N.E.2d 

60 (1993).

Id. at ¶¶36-39. 

{¶20} R.C. 1345.02(B)(2) provides that it is deceptive for a supplier to represent 

that the subject of a consumer transaction is of a particular standard, quality, grade, style, 

prescription, or model, if it is not. Thus, work performed by a supplier must be done in a 

workmanlike manner, and failure to do so may give rise to a violation of the CSPA. 

{¶21} The case of Williams v. Sharon Woods Collision Center, Inc., 1st Dist. 

Hamilton No. C-170511, 2018-Ohio-2733, 117 N.E.3d 57 is instructive. In Williams, the 

plaintiff owned a motor vehicle that was involved in an accident. The defendant collision 

repair business represented that it performed all repairs to manufacturer specifications 

and industry standards. The plaintiff’s vehicle was not, however, repaired according 

manufacturer specifications, and he filed a complaint alleging violations of the CSPA. The 

plaintiff presented expert testimony regarding the defendant’s failure to repair the vehicle 

in compliance with manufacturer standards, defendant’s incomplete repairs, and repairs 
Richland County, Case No. 2023 CA 0022 9

that “had been done in an unworkmanlike and sloppy manner.” Id. at ¶4. The court applied 

the CSPA in the context of, inter alia, the defendant’s “shoddy repairs.” 

{¶22} The case of Scott v. First Choice Auto Clinic, Inc., 10th Dist. Franklin No. 

23AP-48, 2023-Ohio-3855, ___ N.E.3d ___ is also instructive. The plaintiff in Scott

claimed that the defendant auto repair shop violated the CSPA when it restored his 1963 

Austin-Healy classic car in an unworkmanlike manner. The Scott court defined 

workmanlike as follows:

“ ‘A “workmanlike manner” is defined in terms of how work is customarily 

performed by others in the same trade in the same community or the same 

type of work.’ ” Mathis v. Allied Plumbing & Sewer Servs., Inc., 1st Dist. No. 

C-061005, 2007-Ohio-6661, 2007 WL 4355310, ¶ 14, quoting Day-Glo 

Color Corp. v. Brewer-Garrett Co., 8th Dist. No. 87838, 2007-Ohio-159, 

2007 WL 117495, ¶ 7. 

Id. at ¶27. 

{¶23} In addition, the Scott court went on to hold that expert testimony is not 

always necessary to establish that the work performed was done so in an unworkmanlike 

manner:

An expert witness is not always needed to show a deviation from 

common standards of workmanship. Morris v. Gedraitis, 5th Dist., 2023-

Ohio-2317, ––– N.E.3d ––––, ¶ 54; Mathis at ¶ 14; Loukinas v. Roto-Rooter 

Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 24 

(1st Dist.). If the evidence establishing the deviation is neither highly 

scientific nor technical, then expert testimony is neither necessary nor 
Richland County, Case No. 2023 CA 0022 10

required. Reamensynder v. Marino, 11th Dist., 2018-Ohio-5336, 127 N.E.3d 

340, ¶ 6; Fullenkamp v. Homan, Inc., 3d Dist. No. 10-05-16, 2006-Ohio4191, 2006 WL 2337608, ¶ 12.” 

Id. See also, generally, Morris v. Gedraitis, 5

th Dist. Ashland No. 22-COA-030, 2023-

Ohio-2317, at ¶54 (“[w]e first note that there is no per se rule requiring expert testimony 

in workmanlike-construction cases.”)

{¶24} In the case sub judice, the trial court conducted a bench trial at which the 

appellee testified concerning the problems he encountered following the appellant’s 

repairs to his vehicle, including the leaking coolant and steering mechanism difficulties –

neither of which require highly scientific or technical knowledge. In addition, the fellow 

deputy who heard the appellant’s owner misrepresent that the appellee’s vehicle was “on 

the rack as we speak” also testified. The appellant’s owner, Terry E. Davis, Jr. testified, 

as did the appellant’s head technician. The trial court was in the best position to ascertain 

the credibility of the witnesses, and found the appellee’s testimony regarding the 

problems he encountered with the appellant’s repairs to his vehicle to be more credible 

than the testimony submitted by the appellant. The trial court further found that the 

appellant’s repairs were unworkmanlike, and that due to the nature and extent of the 

unworkmanlike work the appellant had violated the CSPA. 

{¶25} As set forth by the court in McNichols v. Gouge Quality Roofing, LLC., 4th

Dist. Pickaway No. 21CA15, 2022-Ohio-3294, 195 N.E.3d 1119, “[i]n a bench trial, the 

trial court is presumed to apply the law correctly and to act properly in considering the 

evidence. See In re. D.W., 1st Dist. Hamilton Nos. C-180644 and C-180654, 2020-Ohio2707, 2020 WL 2060583, at ¶ 11; In re Watson, 47 Ohio St.3d 86, 91, 548 N.E.2d 210 
Richland County, Case No. 2023 CA 0022 11

(1989).” Id. at ¶ 46. This presumption may be rebutted by showing that the trial court’s 

decision is against the manifest weight of the evidence. As stated by this court in Swoger, 

supra: 

Appellants argue that the verdict on their claim for violation of the 

CSPA is against the manifest weight of the evidence.

A judgment supported by some competent, credible evidence going 

to all the essential elements of the case will not be reversed by a reviewing 

court as against the manifest weight of the evidence. C.E. Morris Co. v. 

Foley Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). As the 

trier of fact, the judge is in the best position to view the witnesses and their 

demeanor in making a determination of the credibility of the testimony. “[A]n 

appellate court may not simply substitute its judgment for that of the trial 

court so long as there is some competent, credible evidence to support the 

lower court's findings.” State ex rel. Celebrezze v. Environmental 

Enterprises, Inc., 53 Ohio St.3d 147, 154, 559 N.E.2d 1335 (1990).

Swoger at ¶34-35. 

{¶26} In this case, the trial court was in the best position to ascertain the veracity 

of the witnesses, and we find that there was some competent, credible evidence to 

support the trial court’s finding that the appellant violated the CSPA. 

{¶27} Further, the appellant’s argument that the trial court based its decision on 

hearsay is without merit. The appellant failed to object to the hearsay during the bench 

trial and, accordingly, waived any such error on appeal. See, Davenport v. Watkins, 2

nd

Dist. Montgomery No. 18707, 2002-Ohio-2275, at *4 (admission of medical records 
Richland County, Case No. 2023 CA 0022 12

affirmed where appellant did not object to the alleged hearsay, and therefore failed to 

preserve any error in connection with its admission); and, In re Hoffman, 5

th Dist. Stark 

No. 2001CA00207, 2001-Ohio-1816 at *3 (“...[w]hen a party fails to raise a hearsay 

objection at the time when the documents could be cured, the party waives that error on 

appeal.”) The appellee failed to object to allegedly hearsay evidence during trial, and even 

used the Mansfield GMC invoice during the presentation of its case, which it now claims 

on appeal to be hearsay. If there was a hearsay objection to be made, it was waived and 

cannot now be argued on appeal. Nor does the hearsay issue give rise to plain error, 

particularly since the appellant utilized the Mansfield GMC invoice during the presentation 

of its case during trial. 

{¶28} Finally, the award of treble damages and attorney fees under the CSPA is 

within the sound discretion of the trial court, and will only be reversed upon a showing of 

an abuse of that discretion. In order to rise to the level of an abuse of discretion, the trial 

court's decision must be unreasonable, arbitrary or unconscionable, and not merely an 

error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 450 N.E.2d 

1140. The appellant has failed to establish that the trial court acted unreasonably, 

arbitrarily, or unconscionably in awarding treble damages an attorney fees. 

{¶29} Furthermore, the appellant’s claim that the presentation of evidence on 

attorney fees was “trial by ambush” is unpersuasive. The appellee noted during trial that 

the CSPA allows a prevailing party to recover attorney fees, and requested that in the 

event the trial court found in his favor a separate hearing on attorney fees be scheduled, 

at which time he would present his invoice and, if requested by the trial court, expert 

testimony. The trial court’s March 13, 2023 Verdict After Bench Trial found in favor of the 
Richland County, Case No. 2023 CA 0022 13

appellee, scheduled the matter for a hearing on attorney fees, and instructed the appellee 

to present evidence, including expert testimony, regarding attorney fees. The appellant 

was therefore aware that the appellee would be presenting evidence documenting 

attorney fees incurred, including expert testimony. There was no “ambush” in this case, 

and the trial court did not abuse its discretion in awarding treble damages and attorney 

fees. 

CONCLUSION

{¶30} Based upon the foregoing, we find that the appellant’s assignments of error 

are without merit and are therefore overruled. The decision of the Richland County Court 

of Common Pleas is hereby affirmed. 

By: Baldwin, J.

Wise, John, P.J. and

Delaney, J. concur.