Lapkovitch v. Rankl & Ries Motorcars, Inc.

2021 Ohio 4436

• Court: Ohio Court of Appeals
• Decided: December 16, 2021
• Docket: 2021CA00062
• Status: Published

Opinion

[Cite as Lapkovitch v. Rankl & Ries Motorcars, Inc., 2021-Ohio-4436.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

RONALD E. LAPKOVITCH JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2021CA00062 RANKL & RIES MOTORCARS, INC.

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2019CV01910

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 16, 2021

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MATTHEW S. ROMANO MERLE D. EVANS, III LAW OFFICE of MATTHEW S. JACK B. COOPER ROMANO, LLC MILLIGAN PUSATERI CO., LPA 7100 E. Pleasant Valley Road, Suite 110 Post Office Box 35459 Independence, Ohio 44131 Canton, Ohio 44735 Stark County, Case No. 2021CA00062 2

Wise, John, J.

{¶1} Appellant Ronald E. Lapkovitch appeals the May 13, 2021, decision of the

Stark County Court of Common Pleas granting summary judgment in favor of Appellee

Rankl & Ries Motorcars, Inc.

STATEMENT OF THE FACTS

{¶2} For purposes of this Opinion, the relevant facts and procedural history are

as follows:

{¶3} On September 22, 2018, Appellant Ronald Lapkovitch purchased a 2016

Jeep Renegade (VIN# ZACCJBCT4GPD57827) from Appellee Rankl & Ries Motorcars,

Inc. for $29,061.00, which included the purchase of a $2,400.00 “Extra Mile” extended

warranty service contract from a third-party, Preferred Warranties, Inc. (PWI). The Jeep

had 37,830 miles on the odometer at the time of sale.

{¶4} The Extra Mile Vehicle Service Agreement expressly stated that it applied

for an additional 60 months or 100,000 miles on the vehicle. (Rankl Depo. at 80). Said

Extra Mile Vehicle Service Agreement also expressly required that the "odometer" be in

working condition.

{¶5} On the date of purchase, Appellant and his wife came to Appellee's

business because of a flier they received. (Lapkovitch Depo., p. 16-17). Appellant

intended to purchase a vehicle for his wife, who had become interested in the Jeep as

soon as she saw it. Id. Appellant took the vehicle for a test drive, looked under the hood,

and otherwise inspected the vehicle. Appellant did not have the vehicle inspected by a

mechanic. Stark County, Case No. 2021CA00062 3

{¶6} Appellant had owned and driven the vehicle for approximately 10 months

when he received a manufacturer's recall notice for a cooling fan motor. (Complaint ¶9).

Appellant took the vehicle to Progressive Jeep, a dealership in Massillon, Ohio, for the

recall repair. Id. Appellant claims that while servicing the Jeep, an employee of

Progressive informed Appellant that the Jeep engine in his vehicle had been replaced

with an engine from a Dodge Dart. (Complaint ¶10). The Progressive employee based

his conclusion upon the handwritten word "Dart" on the engine block, which was only

visible after the plastic engine cover was removed. (Lapkovitch Depo. at 59). Plaintiff

claims that he was informed by the service manager at Progressive that the original

manufacturer's powertrain warranty on the Jeep was void because the vehicle no longer

had the original factory engine. (Complaint ¶11, Lapkovitch Depo. at 60).

{¶7} On September 20, 2019, Appellant filed a Complaint against Appellee Rankl

& Ries Motorcars, Inc. alleging breach of contract, fraud, violations of the Ohio Consumer

Sales Practices Act ("CSPA"), and unjust enrichment. Appellant’s claims are based on

the allegation that Appellee had knowledge that the engine in the Jeep had been replaced

with an engine from a Dodge Dart, and Appellee failed to disclose this to Appellant upon

purchase of the vehicle.

{¶8} On February 1, 2021, Appellee filed a Motion for Summary Judgment as to

all claims contained in Appellant’s Complaint.

{¶9} On April 5, 2021, Appellant filed his Brief in Opposition.

{¶10} By Judgment Entry filed May 13, 2021, the trial court granted Appellee’s

Motion for Summary Judgment, finding no genuine issues of material fact, and that

Appellee was entitled to judgment as a matter of law. Stark County, Case No. 2021CA00062 4

{¶11} Appellant now appeals, raising the following error for review:

ASSIGNMENT OF ERROR

{¶12} “I. THE TRIAL COURT'S GRANTING OF DEFENDANT-APPELLEE

RANKL & REIS MOTORCARS, INC.'S ("DEFENDANT") MOTION FOR SUMMARY

JUDGMENT IS REVERSIBLE ERROR.”

Summary Judgment Standard

{¶13} Civil Rule 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed most strongly in the

party's favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶14} A trial court should not enter summary judgment if it appears a material fact

is genuinely disputed, nor if, construing the allegations most favorably towards the non- Stark County, Case No. 2021CA00062 5

moving party, reasonable minds could draw different conclusions from the undisputed

facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The

court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer

Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A

fact is material if it affects the outcome of the case under the applicable substantive law.

Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.

1999).

{¶15} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

I.

{¶16} In his sole assignment of error, Appellant argues the trial court erred in

granting Appellee’s motion for summary judgment. We disagree.

Breach of Contract Claim

{¶17} In his Complaint, Appellant claims Appellee breached the contract in this

matter by failing “to provide Plaintiff with the benefits of the original factory warranty, the

‘Extra Mile’ warranty and service coverage, or the vehicle with its original factory engine

or the proper engine type for the vehicle.” (Complaint at ¶22).

{¶18} As explained by this Court in Caley v. Glenmoor Country Club, 5th Dist.

Stark Nos. 2013 CA 00012 & 2013 CA 00018, 2013-Ohio-4877, ¶ 59-61:

In order to succeed on a breach of contract claim, the plaintiff must

demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his Stark County, Case No. 2021CA00062 6

obligations; (3) the defendant breached his obligations; and (4) damages

resulted from this breach. Chaney v. Ramsey, 4th Dist. No. 98CA614, 1999

WL 217656, (Apr. 7, 1999), citing Doner v. Snapp, 98 Ohio App.3d 597,

600, 649 N.E.2d 42 (2nd Dist.1994).

“ '[B]reach,' as applied to contracts is defined as a failure without

legal excuse to perform any promise which forms a whole or part of a

contract, including the refusal of a party to recognize the existence of the

contract or the doing of something inconsistent with its existence.” Natl. City

Bank of Cleveland v. Erskine & Sons, Inc., 158 Ohio St. 450, 110 N.E.2d

598 (1953), paragraph one of the syllabus.

“ 'When the facts presented are undisputed, whether they constitute

a performance or a breach of a written contract, is a question of law for the

court.’ ” Koon v. Hoskins, 4th Dist. No. 95CA497, 1996 WL 30018, (Jan. 24,

1996), fn. 5, quoting Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241 (1939),

paragraph five of the syllabus.

{¶19} Here, Appellant testified that he never made or attempted to make any

warranty claims under either the factory warranty or the PWI Extra Mile extended

warranty. Appellant therefore has failed to show that he was denied coverage under said

warranties or suffered any damages therefrom.

{¶20} Further, Appellant testified that he never spoke with anyone from the

manufacturer or PWI to verify the status of the warranties. Appellee, however, presented

an expert report indicating that only that portion of the factory powertrain warranty Stark County, Case No. 2021CA00062 7

pertaining to the factory engine would have been voided by the replacement engine, and

that the remaining portion of the powertrain warranty would still be in effect.

{¶21} Appellee likewise presented evidence through its expert that he contacted

PWI’s local representative and was advised that the extended warranty in this case

contained no restrictions and remained in full effect from the date of purchase.

{¶22} Additionally, evidence was presented that the value of the vehicle has not

been diminished by the replacement engine.

{¶23} Based on the foregoing, we find Appellant has failed to prove any breach of

contract or that he suffered any damages as a result of the alleged breach.

Unjust Enrichment

{¶24} “Unjust enrichment operates in the absence of an express contract.”

Cozmyk v. Hoy (June 30, 1997), Franklin App. No. 96APE10–1380, at 8, citing Hummel

v. Hummel (1938), 133 Ohio St. 520–525–528, 14 N.E.2d 923.

{¶25} There is no dispute that a contract existed in this matter. Therefore, this

Court finds Appellant’s claim for unjust enrichment fails as a matter of law.

Fraud

{¶26} To prove fraud, a plaintiff must establish the following elements: (1) a

representation, or silence where there is a duty to disclose, (2) which is material to the

transaction, (3) made falsely, with knowledge of its falsity, or with such utter disregard as

to its truth that knowledge may be inferred, (4) with the intent to mislead another into

relying on it, (5) justifiable reliance on the representation, and (6) resulting injury

proximately caused by the reliance. Williams v. Aetna Finance Co., 83 Ohio St.3d 464, Stark County, Case No. 2021CA00062 8

700 N.E.2d 859 (1998). In addition, a plaintiff alleging fraud must plead with particularity

the circumstances constituting fraud. Civil Rule 9(B).

{¶27} “A party seeking an equitable remedy, such as declaratory judgment,

reformation or rescission of a contract, must prove a fraud claim with clear and convincing

evidence, while a party seeking a monetary remedy must prove fraud by the

preponderance of the evidence.” Andrew v. Power Marketing Direct, Inc., 10th Dist.,

2012-Ohio-4371, 978 N.E.2d 974, ¶ 47, citing Household Finance Corp. v. Altenberg, 5

Ohio St.2d 190, syllabus, 214 N.E.2d 667 (1966).

{¶28} Upon review of the record, we find no evidence that Appellee made any

false representations to Appellant with regard to the vehicle, the factory warranty or the

PWI extended warranty.

{¶29} Again, as set forth above, the Court also finds that Appellant has not shown

that he suffered any damages as a result of the alleged fraud. As previously set forth

herein, the Court finds that Appellant was never denied coverage for any warranty repairs,

under either the factory warranty or the PWI extended warranty. Also, again, the

replacement engine has not diminished the value of the Jeep.

{¶30} Based on the foregoing, we find Appellee is entitled to summary judgment

on Appellant’s fraud claim.

Consumer Sales Practices Act

{¶31} In his brief in opposition to Appellee’s motion for summary judgment,

Appellant alleges Appellee violated R.C. §1345.02(B)(2),(10), by "several direct and

implied false representations" regarding the vehicle and its warranty, including: 1) that the

original factory powertrain warranty was still in place when it was not; 2) that the vehicle Stark County, Case No. 2021CA00062 9

qualified for an enforceable extended warranty when it did not; 3) that the odometer

accurately reflected the miles driven on the (replacement) engine when it did not; and 4)

the implication that the vehicle still had its original installed engine when it did not.

{¶32} Upon review, we find Appellee disclaimed all warranties in the Retail Sales

Contract entered into by the parties. Appellant has failed to put forth evidence that any

representations were made to him by Appellee with regard to the vehicle or the engine.

(Lapkovitch Depo. at. 19-20).

{¶33} Further, as set forth above, Appellant never made any claims under the

factory warranty or proved that the warranty was voided.

{¶34} The same holds true with regard to Appellant’s PWI warranty claims as he

did not make any claims under the PWI warranty and did not provide the trial court with

any evidence that the PWI warranty was void. To the contrary, Appellee's expert testified

that he contacted PWI and was informed that the extended warranty is and has been in

full effect since the date of purchase.

{¶35} Appellant also claims that Appellee falsely represented that the odometer

accurately reflected the miles driven on the replacement engine. Upon review, we find no

evidence that Appellee ever made any representations about the odometer.

{¶36} Again, this Court find Appellant has failed to prove Appellee knew that the

engine in the Jeep had been replaced.

{¶37} We therefore find Appellee is entitled to summary judgment on Appellant’s

Violation of the Consumer Sales’ Practices Act claim. Stark County, Case No. 2021CA00062 10

{¶38} Based on the foregoing, we find Appellant’s assignment of error not well-

taken and hereby overrule same.

{¶39} For the reasons stated in the foregoing opinion, the decision of the Stark

County Court of Common Pleas is affirmed.

By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.

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