Cincinnati, Ohio - Civil Litigation lawyer represented Defendant-appellant with appealing the judgment in favor of plaintiff-appellee as to an express warranty.

On November 5, 2020, plaintiff-appellee Natasha Mitchell purchased a

used 2005 Chrysler Pacifica "as-is” from defendant-appellant Michael J.'s. Less than

one hour later, the vehicle caught fire while she was driving on the highway.

{¶3} On November 10, 2020, after unsuccessfully attempting to resolve the

issue with Michael J.'s, Mitchell filed a complaint in the small claims division of the

Hamilton County Municipal Court against "Michael J. Auto Sales dba Weinle

Motorsports.” She requested $2,200 in damages—the purchase price of the vehicle.

{¶4} The matter proceeded to a bench trial in the small claims division before

a magistrate. Mitchell testified that after test driving the vehicle, she was inside the

dealership completing paperwork for the sale, when a technician told her, "I notice[d]

that the radio—something about some radio frequency, something, was gone. * * * But

don't worry about it, I'll take care of it for you.” Mitchell testified that the technician

"proceeded to go to the back of the lot, take a fuse off of an older model Chrysler

Pacifica, [and] place the fuse in the Pacifica that I purchased.”

1 Mitchell did not file a brief or appear at oral argument. Pursuant to App.R. 18(C), if an appellee

fails to file a brief, this court "may accept the appellant's statement of the facts and issues as correct

and reverse the judgment if appellant's brief reasonably appears to sustain such action.”

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{¶5} Mitchell testified that after completing the sale, "10 minutes off the lot,

I'm on the highway, jump out the vehicle; the entire vehicle engulfed in flames.”

Mitchell called the fire department, and had the vehicle towed to her home. Mitchell

emailed Michael J.'s that night to tell them about the problem, and was told to return

to the dealership the following day. Mitchell testified that after arriving at the lot the

next day, she was told that Michael J.'s was "going to work something out” with her.

She spent three hours test driving several cars, but was then told that "Mr. Michael

has changed his mind.” She testified that she "was sent away from the lot without * *

* any solution.” Upon returning home, the car was gone. Mitchell testified that she

spoke with her property manager, and "every tow truck in the metro area” but was

unable to locate the vehicle.

{¶6} Mitchell submitted her charred receipt for the vehicle, email

correspondence between her and appellant, her call log, and photographs of the

vehicle after the fire. The pictures show that the entire front half of the vehicle—inside

and outside—was destroyed by the fire. In one photograph, there is visible charring in

one concentrated area of the vehicle's hood. She did not dispute that she bought the

vehicle "as-is—no dealer warranty.”

{¶7} Michael Weinle, the owner, testified on behalf of Michael J.'s that he

"was told they put a fuse in it to—I think it was a headlight fuse or a radiator fan or

fuse, and it had nothing to do with the firewall.” Weinle disputed Mitchell's contention

that a faulty fuse could even start a fire, and theorized that the fire was started by

gasoline.

{¶8} After hearing from both parties, the magistrate recommended judgment

for Mitchell in the amount of $2,200 plus court costs. On March 24, 2021, Michael

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J.'s objected to the magistrate's decision and requested findings of fact and

conclusions of law.

{¶9} The magistrate found that there was no dispute that the sale agreement

was "as-is,” and that after signing the contract to purchase the vehicle, but before

leaving the premises, a Michael J.'s technician replaced a fuse in the vehicle. The court

did not make a finding as to why the mechanic replaced the fuse, or whether the

mechanic used the correct fuse.

{¶10} The magistrate concluded that "the Defendant knew of an issue with the

vehicle, but did not disclose what the issue was.” And that Michael J.'s "committed

fraud as to an express warranty when they knew there was a defect with the car and/or

negligence in the repair of the car in the replacement of the fuse and the resulting fire

after the purchase of the vehicle.”

{¶11} On May 28, 2021, the court overruled Michael J.'s objections and found

in favor of Mitchell in the amount of $2,200.

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{¶12} Michael J.'s timely appealed.

Sole Assignment of Error

{¶13} In a single assignment of error, Michael J.'s argues that the magistrate's

decision was against the manifest weight of the evidence and the trial court erred in

adopting the magistrate decision and finding in favor of the plaintiff for $2,200.

{¶14} Under a manifest-weight-of-the-evidence challenge, we must weigh the

evidence and all reasonable inferences, consider the credibility of witnesses, and

2 The court initially overruled the objections and approved the magistrate's decision on April 16,

2021, noting that appellant had not filed transcripts. However, on April 22, 2021, Michael J.'s filed

a motion for relief from judgment pursuant to Civ.R. 60(B) and filed transcripts shortly thereafter.

After receiving the transcripts, the court vacated its initial judgment, before reaching the same

conclusion on May 28, 2021.

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determine whether the trial court "clearly lost its way and created such a manifest

miscarriage of justice that its judgment must be reversed and a new trial ordered.”

Crenshaw v. Michael J.'s Auto Sales, 2021-Ohio-1468, 170 N.E.3d 1291, ¶ 16 (1st

Dist.), citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 20. " 'If the evidence is susceptible of more than one construction, we must give

it that interpretation which is consistent with the verdict and judgment, most

favorable to sustaining the trial court's verdict and judgment.' ” Battle Axe Constr.,

L.L.C. v. H. Hafner & Sons, Inc., 1st Dist. Hamilton No. C-180640, 2019-Ohio-4191, ¶

12, quoting Karches v. City of Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350

(1988).

Express Warranty

{¶15} The magistrate held that "Michael J. committed fraud as to an express

warranty when they knew there was a defect with the car.” Specifically, the magistrate

found that "[t]he mechanic replaced a 'fuse' which was taken off another car in the lot.

[Michael J.'s] knew of an issue with the vehicle but did not disclose what the issue

was.”

{¶16} Michael J.'s contends that there is no dispute that the contract in this

case contains a written "as-is” clause and therefore it is not liable for any mechanical

issues or defects once the car was driven off of its lot. Michael J.'s further argues that

there was no fraud because it let Mitchell know that there was a problem with a fuse

and the fuse was replaced.

{¶17} Generally, "a seller of goods impliedly warrants that a good is

merchantable and fit for a particular use.” Crenshaw, 2021-Ohio-1468, 170 N.E.3d

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1291, at ¶ 12, citing R.C. 1302.29(B). However, the use of a written "as-is” clause

disclaims all of these implied warranties. Id., citing R.C. 1302.29(C)(1).

{¶18} Nevertheless, express oral warranties made to a buyer can survive an

"as-is” clause. Barksdale v. Van's Auto Sales, Inc., 62 Ohio App.3d 724, 728-729, 577

N.E.2d 426 (8th Dist.1989) (finding that seller's oral express warranty predominated

the "as is” clause in the sales contract); see Crenshaw at ¶ 13 (written "we owe

agreement” was not negated by "as-is” clause in contract); Perkins v. Land Rover of

Akron, 7th Dist. Mahoning No. 03 MA 33, 2003-Ohio-6722, ¶ 19 (written express

warranty as to certain components was effective despite "as-is” clause). An express

warranty is "[a]ny affirmation of fact or promise made by the seller to the buyer which

relates to the goods and becomes part of the basis of the bargain.” R.C. 1302.26(A)(1);

UCC 2-313.

{¶19} The timing of the affirmation is not material. See R.C. 1302.26; UCC 2-

313, Comment 7. Rather, "[t]he sole question is whether the language * * * [is] fairly

to be regarded as part of the contract.” Id. "If language is used after the closing of the

deal * * * the warranty becomes a modification, and need not be supported by

consideration if it is otherwise reasonable and in order.” Id.

{¶20} If a seller makes an express warranty, the "as-is” clause is not

necessarily meaningless. Land Rover at ¶ 19. "Instead, the phrase 'as is' excludes all

warranties except those expressly made to the buyer.” (Emphasis sic.) Id. In applying

the provisions together, we have said that " '[w]ords or conduct relevant to the creation

of an express warranty and words or conduct tending to negate or limit warranty shall

be construed wherever reasonable as consistent with each other.' ” Crenshaw at ¶ 13,

quoting R.C. 1302.29(A); UCC 2-316. However, where the "as-is” clause "cannot be

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reasonably construed as consistent with the seller's oral express warranty, the express

warranty will prevail and the inconsistent provisions deemed inoperative to the extent

they are unreasonable.” Barksdale at 729.

{¶21} In Barksdale, a used car buyer in an "as-is” sale inquired about a car's

transmission and was told it just needed a fluid and filter change, but that it was

otherwise in working order. Barksdale, 62 Ohio App.3d at 728, 577 N.E.2d 426. In

Land Rover, the sales contract included a specific note that the dealer would repair

the air conditioning. Land Rover, 7th Dist. Mahoning No. 03 MA 33, 2003-Ohio6722, at ¶ 4. In Crenshaw, Michael J.'s entered into a separate "we owe” agreement

with a buyer to repair the exhaust, air conditioning, brake pads, hood latch release,

and glove box. Crenshaw, 2021-Ohio-1468, 170 N.E.3d 1291, at ¶ 2. In each of these

cases, the named components failed and the court found an express warranty was

made as to the specific component that was not excluded by the "as-is” clause.

Barksdale at 430; Land Rover at ¶ 20; Crenshaw at ¶ 15.

{¶22} The record demonstrates that while Mitchell was completing payment

paperwork for the vehicle, the technician told her about the fuse issue, but assured her

that the repair would "take care of it.” Michael J.'s does not dispute this interaction.

Michael J.'s thus expressly warranted that the new fuse would fix the defect that it

found in the vehicle.

{¶23} Therefore, the magistrate's conclusion that an express warranty was

created as to the fuse and the part of the vehicle that was repaired by the new fuse was

supported by the evidence.

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Fraud

{¶24} Michael J.'s argues it could not have committed fraud as to the express

warranty because Mitchell was informed of the fuse replacement.

{¶25} Despite the existence of an "as is” clause in a contract, a seller may

commit fraud. Land Rover, 7th Dist. Mahoning No. 03 MA 33, 2003-Ohio-6722, at

¶ 24. "Where a used car dealer sells a vehicle 'as is' he is under a duty to use ordinary

care to warn the purchaser of defects of which he has, or by the exercise of reasonable

care, should have knowledge.” Id.

{¶26} Here, the trial court found that Michael J.'s "knew of an issue with the

vehicle but did not disclose what the issue was.” However, the testimony showed that

Michael J.'s did disclose that a fuse needed to be replaced. The mechanic who replaced

the fuse did not testify at trial and neither witness who did testify at trial knew exactly

why the fuse needed to be replaced. Nevertheless, the issue with the fuse was disclosed

to Mitchell and neither party disputes that the fuse was replaced. Mitchell did not

allege that there was any other defect that had not been disclosed. Accordingly, the

magistrate's finding that Michael J.'s committed fraud as to an express warranty was

against the manifest weight of the evidence.

Negligence

{¶27} Michael J.'s argues that the magistrate clearly lost her way and created

a manifest miscarriage of justice when she also found that it "committed * * *

negligence in the repair of the car or in the replacement of the fuse,” which caused the

fire.

{¶28} Michael J.'s argues that there was no evidence presented that the

replaced fuse caused the fire. In fact, Michael J.'s points to the testimony of Weinle to

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support its contention that the evidence showed the fuse did not cause the fire. Weinle

testified that "the only thing a fuse does is stop a fire, not start a fire. * * * If you have

a fire, it goes real quick, that's caused by gasoline, not by electric.” Michael J.'s claims

that Weinle is "an expert with cars being in the business [sic] having sold, repaired and

raced automobiles for years.”

{¶29} A negligence claim requires: "a duty, breach of that duty, and an injury

caused by that breach.” Cincinnati Bell Tel. Co. v. J.K. Meurer Corp., 2022-Ohio-540,

185 N.E.3d 632, ¶ 22 (1st Dist.).

{¶30} By disclosing a defect and agreeing to fix it by replacing a fuse, Michael

J.'s had a duty to competently perform the repair. The question then becomes whether

Michael J.'s breached its duty to perform the repair by performing a faulty repair, and

whether a faulty repair caused the fire. "Any damage to the vehicle resulting from a

faulty repair would not be precluded by the 'as is' exclusion of warranties.” Land Rover

at ¶ 20.

{¶31} Michael J.'s faults Mitchell for failing to present expert testimony about

the cause of the fire. However, this was a case in small claims court. "[B]y design,

proceedings in small claims courts are informal and geared to allowing individuals to

resolve uncomplicated disputes quickly and inexpensively. Pro se activity is assumed

and encouraged.” Cleveland Bar Assn. v. Pearlman, 106 Ohio St.3d 136, 2005-Ohio4107, 832 N.E.2d 1193, ¶ 15. The Ohio Rules of Evidence do not apply in small claims

court, but the evidence still must be "reliable.” See Erwin v. Best Buy Auto Sales, 11th

Dist. Lake No. 2002-L-117, 2003-Ohio-6770, ¶ 10; Cunningham v. Michael J. Auto

Sales, 1st Dist. Hamilton No. C-200087, 2021-Ohio-1390, ¶ 17-18; see also Evid.R.

101(C)(8). " 'Small claims court is a "layman's forum,” and any attempt to require

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expert testimony is an undue burden on the plaintiff.' ” Marsh v. Lansing Gardens

Apts., 7th Dist. Belmont No. 07-BE-32, 2008-Ohio-3404, ¶ 12, quoting Stull v. Budget

Interior, 7th Dist. Belmont No. 02-BA-17, 2002-Ohio-5230, ¶ 11.

{¶32} In Marsh, the court held that the circumstantial evidence presented by

the plaintiff was enough to prove that the electrical system in her apartment caused

the damage to her appliances. Marsh at ¶ 12. The plaintiff testified that the lights in

her apartment would go out all the time and flicker from time to time. Id. at ¶ 13. She

claimed that various appliances in her apartment would " 'blow up' on her for no

apparent reason.” Id. She testified that two ceiling fans, a television, and a DVD player

were rendered inoperable and she had to replace two electric water heaters. Id. Other

tenants also testified about issues with the lights such as sparks flying out when you

flipped a switch and flickering lights. Id. at ¶ 14.

{¶33} In Finkley v. Eagle Chevrolet-Oldsmobile, 11th Dist. Trumbull No.

96-T-5509, 1997 Ohio App. LEXIS 3662 (Aug. 15, 1997), the court held that a vehicle

owner's testimony was sufficient to demonstrate a claim for negligent repair of a

vehicle when it caught fire "within a matter of hours” after the repair. Id. at *5. In that

case, the plaintiff took his vehicle to defendant's shop for a repair, and returned days

later for a second repair. Id. at *1. On the day the plaintiff picked up his vehicle after

the second repair, the vehicle caught fire. Id. at *2. The plaintiff filed suit. Id. At a

bench trial, each party presented one witness: the plaintiff testified on his own behalf,

and the defendant offered testimony of a service consultant. Id. at *4. The trial court

found in favor of the plaintiff, finding his testimony to be more credible. Id. On

appeal, the Eleventh District held that "[w]hile there was not an abundance of

evidence, there was competent, credible evidence supporting the trial court's

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decision,” noting that "within a matter of hours after having allegedly been repaired, a

fire broke out in appellee's vehicle * * * .” Id.

{¶34} In the case at bar, the circumstantial evidence was enough to support

the trial court's decision. It is undisputed that Mitchell test drove the vehicle without

incident, Michael J.'s replaced a fuse, and then the vehicle caught fire within ten

minutes after Mitchell drove it off the lot. In addition to the timing of the events,

Mitchell testified that the technician replaced the fuse with one from an older model

on the lot—seemingly without any additional testing or inspection. The court also had

photographs of the vehicle, which showed visible charring in one concentrated area of

the vehicle's hood. The vehicle mysteriously went missing shortly after the fire, so

further analysis of its components was not possible. While each party presented

conflicting testimony about the cause of the fire, the trial court was in the best position

to determine whose evidence was most credible. The court did not lose its way in

finding that the fuse replacement was the actual and proximate cause of the fire.

{¶35} Therefore, we hold that trial court's determination that Michael J.'s was

negligent in the repair of the vehicle or replacement of the fuse was not against the

manifest weight of the evidence.

Acceptance

{¶36} Finally, Michael J.'s asserts that Mitchell accepted the vehicle after she

had a reasonable opportunity to inspect it. See R.C. 1302.64(A)(1). Michael J.'s has

not articulated its argument on this point or directed us to any authority beyond the

Ohio Revised Code to support its argument.

{¶37} R.C. 1302.64(A)(1) provides "acceptance of goods occurs when the

buyer: after a reasonable opportunity to inspect the goods signifies to the seller that

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the goods are conforming or that he will take or retain them in spite of their

non-conformity.”

{¶38} The record does not demonstrate that Mitchell had a reasonable

opportunity to inspect the vehicle after the repair was made. After Mitchell test drove

the vehicle, Michael J.'s assured her that it would make the necessary repairs.

Reasonably relying on its expertise, Mitchell completed her payment for the vehicle.

Then, the vehicle caught fire, ten minutes after Mitchell began driving it for the first

time with the new fuse. This was not a reasonable opportunity to inspect the vehicle.

Therefore, Michael J.'s has not demonstrated that Mitchell is precluded from recovery

on this basis.

In light of the foregoing analysis, we overrule Michael J.’s assignment

of error and affirm the judgment of the trial court.