COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59790 : ALUMINUM LINES PRODUCTS COMPANY : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION ROLLS-ROYCE MOTORS, INC., ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 107,987 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: PETER H. WEINBERGER, ESQ. DAVID C. WEINER, ESQ. DENNIS R. LANSDOWNE, ESQ. R. STEVEN DeGEORGE, ESQ. 1500 National City Bank Bldg. Hahn Loeser & Parks Cleveland, Ohio 44114 800 National City E. 6th Bldg. Cleveland, Ohio 44114 - 2 - HARPER, J.: Plaintiff-appellant, Aluminum Line Products Company ("Aluminum Line") instituted this action on April 19, 1986, contending that defendants-appellees, Rolls Royce Motor Cars, Inc. ("Rolls Royce") and Qua Buick, Inc. ("Qua Buick") breached their warranties with respect to a 1982 Rolls Royce Silver Spur (the "vehicle"). Aluminum Line subsequently amended its complaint to add a claim for a violation of the Magnuson-Moss Warranty Act, 15 U.S.C.S. 2301 et seq. A bench trial commenced on February 22, 1990. The trial court, on April 18, 1990, adopted the appellees' Proposed Findings of Fact and Conclusions of Law. Judgment was, therefore, entered in favor of Rolls Royce and Qua Buick. Aluminum Line now appeals the trial court's order. A careful review of the record compels reversal and a remand of the action. I. Kenneth Wessel is the president and principal shareholder of Aluminum Line. Mr. Wessel owned, both personally and through his company, a total of ten Rolls Royces, including the one in question, through the years. Four of the five vehicles purchased from Qua Buick were brand new. Mr. Wessel, on behalf of Aluminum Line, purchased a 1982 Silver Spur Rolls Royce from Qua Buick on November 16, 1982. Qua Buick was an authorized Rolls Royce dealer and service center from approximately 1966 to 1987. The purchase price of the vehicle was $95,318. - 3 - Rolls Royce provides a three-year parts and labor warranty on all new cars which is termed "Rolls Royce Motors Limited Warranty". Aluminum Line's exclusive remedies were limited under the warranty, in the event of any defect in material or workmanship of any component, to "the repair or, at [Rolls Royce's] option, the replacement with a new or remanufactured unit, without charge for labor or parts." The warranty also expressly precludes "consequential or incidental" damages. Mr. Wessel received a copy of the limited warranty with the purchase of the Silver Spur. He signed a Rolls Royce's Warranty Acknowledgement on November 23, 1982. Mr. Wessel, on October 29, 1985, penned a letter to Rolls Royce, setting forth seventeen (17) problems with the vehicle. All but three of the problems were repaired by the time of trial. The remaining problems were that varnish was cracked on the 1/ vehicle's interior trim, a gap existed in the left rear door, and the height control system continued to malfunction. Mr. Wessel, in conclusion, informed Rolls Royce that he rescinded the transaction and requested the return of the purchase price. Mr. Wessel, receiving no assurance that either the left rear door or the height control system could effectively 1/ Finlay McDonald, Zone Service Manager for Rolls Royce, authorized the repair of the varnish. The repair required the removal of the trim, and the forwarding of it to England where it would be stripped and refinished. Plywood would be temporarily placed on the vehicle to avoid unsightliness. Mr. Wessel refused the offer of repair. - 4 - be repaired, stored the vehicle and instituted the present action. II. Aluminum Line, in its first assignment of error, asserts that: "The lower court erred in finding that an automobile warranty did not fail of its essential purpose where the uncontradicted documentary and testimonial evidence established as a matter of law that the warrantors were unable to repair the vehicle's numerous defects." The trial court adopted the appellees' following conclusion of law: "4. The Written Warranty in this case did not fail of its essential purpose because (a) the alleged defects in the Car, even if true, were not sufficiently serious in number or severity; (b) Rolls-Royce and Qua Buick have always and continue to stand ready, willing and able to repair or replace any defective part; (c) the service on the Car performed by Rolls-Royce and Qua Buick under the Written Warranty rectified most, if not all, of Wessel's complaints; and (d) Wessel refused to permit Rolls-Royce and Qua Buick to repair one of the few remaining complaints, namely, the cracking in the varnish on the car's interior wood trim." Aluminum Line contends that appellees' repair orders established a series of defects, some recurring, in the vehicle. It argues that "the uncontradicted evidence established as a matter of law that the warranty failed of its essential purpose", and, therefore, the trial court's conclusion is contrary to the evidence. Repair and warranty records disclose that the vehicle was in the possession of Qua Buick as a result of various complaints, some repeated, made by Mr. Wessel. Qua Buick personnel confirmed a number of complaints and executed the required repairs. The - 5 - record reflects the following activity concerning Aluminum Line's 2/ Silver Spur. On November 22, 1982, with 733 miles on the vehicle, vibration in the front end warranted a front end alignment. On July 14, 1983, with 4117 miles, the vehicle was repaired for problems with the height control system and a noise in the rear chassis. On October 13, 1983, with 5193 miles, repairs were required on the height and cruise control systems, and brakes. On November 18, 1983, with 5725 miles, a complaint that the vehicle would not start when cold required an adjustment of the fuel injection system and the replacement of the spark plugs. Repairs were also required on the rear left door. On December 27, 1983, with 6701 miles, the vehicle required repairs on the rear left door and an alignment. On January 31, 1984, with 7137 miles, the vehicle was in for repair of the left rear door, height control systems, front seat and steering houses. On March 1, 1984, with 7443 miles, the vehicle required height control system, shocks, thermostat, and left rear door repairs. On June 1, 1984, with 8154 miles, repair was required on the temperature indicator. 2/ Additional repair orders were admitted into evidence but do not conclusively demonstrate that repairs were made on the vehicle. These orders included checks and regular maintenance. - 6 - On August 1, 1984, with 9630 miles, the vehicle's height control system required repair. On September 17, 1984, with 9909 miles, Qua Buick installed a new upper spool value seal as the vehicle's steering was noisy. On October 10, 1984, with 10,282 miles, the vehicle was repaired for problems with steering, cruise control and door striker. On November 19, 1984, with 10,601 miles, the vehicle was in for repairs on the speedometer and steering. On February 7, 1985, with 10,621 miles, the vehicle required repairs on the height control system, brakes, speedometer, and left and right rear doors. On June 24, 1985, with 10,899 miles, the vehicle's left rear door and engine required repairs. On August 16, 1985, with 12,627 miles, the vehicle required repairs on the height control system, clutch, and left rear door. The service time clock at the dealership was not always functioning properly. Aluminum Line could thus not accurately calculate the time the vehicle was in Qua Buick's possession as a result of the repairs. Mr. Wessel complained of recurring problems with the vehicle's height control system and the left rear door. The height control system, through hydraulic pressure, automatically levelled the car when different weight is placed in it. The system affected the smoothness of the vehicle's ride. Aluminum Line asserts that the Silver Spur's system was defective. - 7 - Mr. Wessel testified that the system would jack the rear end of the vehicle up for no reason. The vehicle resembled a "teenage hot rod rather than a luxury business vehicle" and also gave it an extremely "hard" ride. On other occasions, the leveling system did not operate at all, allowing the vehicle to ride low and as if it had no shock absorbers. The vehicle also at times lifted unevenly or with a "clunk" noise. The other recurring complaint was that the left rear door never fitted properly. Wilbur Meredith was the sales/service manager at Qua Buick from 1983 to 1985. He confirmed Mr. Wessel's complaints as to the height control system and worked on the system himself. Mr. Meredith testified as to the height control system as follows: "A. We could get it functional at the point in time when we finished working on the car, each of these incidents. "It just didn't last, it didn't stay functional and the ultimate result was you would be driving down the road and the rear end of the car suddenly would jack up either one side or both and raise it to the extreme of the spring and cause it essentially like it didn't have springs in the back. "The attitude would be the front of the car down and rear of the car up, sometimes it would do it unevenly. "The other symptom, when you parked it, it didn't stay level, it would lose pressure and drop down the other way, all the way to the bottom." Mr. Meredith testified that Mr. Wessel's complaints were always confirmed by him or other employees in the service department. The repair orders indicate that repairs were performed on the - 8 - height control system a total of seven (7) times in a three (3) year period. Roger Kleinschmidt was a Rolls Royce technician at Qua Buick during the period in question. As a Rolls Royce technician, Mr. Kleinschmidt received specialized training on Rolls Royce automobiles, including a course on the Rolls Royce's unique hydraulic system. Mr. Kleinschmidt also experienced and confirmed Mr. Wessel's complaints on the height control system. Mr. Meredith and Mr. Kleinschmidt also confirmed that the vehicle's left rear door suffered from continuous problems. Mr. Meredith testified that the: "*** door was a constant source of headache. *** [E]ither we would get it so it would shut properly and easily without binding and so forth, in which case, generally if we did that, then it would seem to leak water under heavy pressure conditions, like squirting with a hose or rain. If it was tightened up, it would not leak, then it was hard to open and close. We did numerous adjustments. We replaced the weather stripping around the car probably four or five times that I can think of." Mr. Kleinschmidt could not recall ever getting the door to work properly. Steve Qua was aware of all of Mr. Wessel's complaints about the Silver Spur. Mr. Qua attributed the complaints to Mr. Wessel's belief and perception that the vehicle had more problems than any other Rolls Royce. Mr. Qua testified that the vehicle in question performed fine, with no noticeable problems. Mr. Wessel's dissatisfaction with the vehicle was also explained by appellees as resulting from the totally different ride of the Silver Spur versus other models of Rolls Royce owned - 9 - by Mr. Wessel. The Silver Spur's ride was a much harder one. Appellees also claimed that Mr. Wessel failed to adequately maintain the vehicle. Fred Harbath inspected the vehicle on January 11, 1989. Mr. Harbath is a GM trained technician and rode in a Rolls Royce for the first time on January 13, 1989 when he road tested Aluminum Line's vehicle. The vehicle could not be driven on January 11th because the vehicle required repairs on the suspension system. Any problems with the vehicle noted by Mr. Harbath were attributed to the vehicle being in storage. He offered his opinions based on the similarity between GM and Rolls Royce components. Mr. Harbath acknowledged, however, on cross- examination, that water was present in the vehicle, having leaked in through the left rear door. He agreed that water in a vehicle is unacceptable. John Hill was employed by Rolls Royce as a technical support manager for the United States. He test drove the vehicle on January 31, 1990 and performed checks on several of the vehicle's systems. He noted no problems with any of the systems although he stated that the vehicle was in need of maintenance service. In Goddard v. General Motors Corp. (1979), 60 Ohio St. 2d 41, the Ohio Supreme Court held: "Where a new car express warranty limits a buyer's remedy to repair and replacement of defective parts, but the new car is so riddled with defects that the limited remedy of repair and replacement fails its essential purpose, the buyer may institute an action to recover damages for breach of warranty under R.C. 1302.88(B) and, in a proper case, incidental and - 10 - consequential damages under R.C. 1302.88(C) and 1302.89." Id., syllabus. In the same opinion, the court discussed when a limited remedy fails of its essential purpose: "Although in most cases a limited remedy may be fair and reasonable, and satisfy the reasonable expectations of a new car purchaser, other courts and some commentators have generally recognized that when a seller is unable to fulfill its warranted obligation to effectively repair or replace defects in goods which are the subject matter of the sale, such as in the instant cause, the buyer is deprived of the benefits of the limited remedy and it therefore fails its essential purpose." Id., 45. Generally, the weight given the evidence and the credibility of witnesses are issues to be resolved by the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 81. Accordingly, a judgment supported by some competent, credible evidence shall not be reversed as being against the weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279, syllabus. In the case sub judice, Aluminum Line returned the vehicle to Qua Buick for repair on many an occasion. The appellees never refused to repair the vehicle. The evidence, however, amply demonstrates that appellees could not effectively repair two recurring problems. Appellees are correct in their assertion that no car is perfect. Mr. Wessel could also have been a "finicky" car owner as alleged by appellees. However, the record clearly reveals - 11 - that Mr. Wessel was not imagining difficulties and problems with the vehicle. The problems and difficulties existed as evidenced 3/ in the repair orders. Mr. Wessel's satisfaction with the Rolls Royce automobile is clearly shown by his history of Rolls Royce ownership. There was no testimony that Mr. Wessel was a "finicky" owner of these other Rolls Royces. Aluminum Line was thus deprived of the benefits of the limited remedy. The trial court's conclusion that the vehicle's defects were not numerous belies the record. Whether the defects were not severe, as claimed by appellees, is of little merit. See Nearhouse v. Volkswagen of America, Inc. (1987), 42 Ohio App. 3d 42 (where plaintiff complained of non-safety related defects). The trial court's conclusion that appellees were always willing to repair and did repair the vehicle is also of little significance. This court is not influenced by appellee's argument that the repairs could be done, or that the repairs could be done if someone knew how to do them. The fact is that although the repairs were done, the vehicle inevitably and within a relatively short period of time, required the same repairs. Finally, the trial court inappropriately relies on Mr. Wessel's refusal to allow the repair of the woodwork. This refusal does not negate all the prior complaints and repairs. The trial 3/ Appellee's allegation that Mr. Wessel was solely motivated by his displeasure with the reduction in purchase price of the Silver Spur model from 1982 to 1983 is refuted by the record of repairs. - 12 - court's conclusions are, therefore, not supported by competent, credible evidence. Appellant's first assignment of error is sustained. III. In its second assignment of error, appellant contends that: "The lower court erred in its alternative finding that, even if the warranty failed of its essential purpose, plaintiff had not presented evidence of the value of the car as accepted." Mr. Wessel, the president of Aluminum Line, testified as follows as to the vehicle's fair market value: "Q. As president, can you tell the Court what the value of this vehicle is to Aluminum Line Products? "A. Today? * * * "Q. Yes. "A. Nothing. * * * "Q. My question is, what is the value of it to Aluminum Line Products Company? "A. Nothing. "Q. Why? "A. It is not usable. It is sitting in storage, it is not usable, you cannot use it. "Q. Could you sell it? "A. I imagine you could sell it, but we wouldn't sell it under our name." The trial court accepted appellee's finding that Aluminum Line failed to present evidence of the value of the car. Aluminum Line argues that Mr. Wessel's testimony set forth the - 13 - proper measure of damages: the difference between the purchase price and zero. In Combs v. Cincinnati Gas and Electric Company (1984), 16 Ohio App. 3d 98, the court stated: "The well-settled rule regarding the ability of the owner of personal property to testify to its value for purposes of establishing damages was recited most recently by the Ohio Supreme court in Bishop v. East Ohio Gas Company (1944), 143 Ohio St. 541, 28 O.O. 470. In Bishop the court stated at 546, 'It is established in Ohio that the owner of personal property, because of such ownership, has a sufficient knowledge of its value to be qualified to give an opinion thereon which will be some evidence of the actual value, though not conclusive. ***' See, also Kohnle v. Carey (1946), 80 Ohio App. 2d, 35 O.O. 413. In two reported cases since Bishop this court has held that the owner of personal property, although not an expert, is a competent witness as to the value of his own property. See Layton v. Ferguson Moving and Storage Company (1959), 109 Ohio App. 541, 12 O.O. 2d 157; Employers' Fire Insurance Company v. United Parcel Service (1950), 89 Ohio App. 447, 45 O.O. 475. See. also, Butram v. Blair (1958), 106 Ohio App. 57, 6 O.O. 2d 312; Mills v. Banks (1954), 97 Ohio App. 557, 56 O.O. 486; Groves v. Gray (1942), 74 Ohio App. 384, 29 O.O. 580." Combs, supra, 99. Mr. Wessel was properly allowed to testify as to the fair market value of the vehicle. Such testimony, however, is not conclusive. The trial court was therefore free to not adopt Mr. Wessel's testimony. Appellant's second assignment of error is overruled. IV. Appellant, for its third assignment of error, asserts that: "The lower court erred in finding that revocation of acceptance of an automobile was not effective where the uncontradicted documentary and testimonial evidence established as a matter of law that the numerous - 14 - defects in the vehicle impaired its value to the owner and timely revocation was made." Revocation of acceptance and recovery for damages for breach of warranty are two distinct remedies. A buyer can seek both remedies, but the remedies are different. See Arrow International Inc. v. Rolls-Royce Motors, Inc. (Apr. 17, 1986), Cuyahoga App. Nos. 50305, 50341, unreported. Aluminum Lines's amended complaint stated three claims for relief: breach of express warranty, breach of implied warranty of merchantability and for attorneys' fees under the Magnuson Moss Federal Warranty Act. Aluminum Line based its complaint on an existing contract with appellees which was allegedly breached by appellees. Since the purpose behind Civ. R. 8(A) is to give notice to a defending party of plaintiff's cause of action, the trial court properly found that Aluminum Line did not state a cause of action for revocation of acceptance. V. In its fourth assignment of error, appellant contends that: "The lower court erred in not awarding attorney fees under the Magnuson-Moss Act where breach of warranty was established." The trial court initially ruled that Aluminum Line failed to state a claim upon which relief can be granted under the Magnuson-Moss Act ("Act"). The trial court then reviewed whether Aluminum Line would be entitled to attorney fees under the Act if there was a proper claim. Aluminum Line, in its amended complaint, claimed that "defendants have failed to comply with their obligations under - 15 - 15 USCS 2301 et seq., ***". Aluminum Line, in its prayer, requested "Reasonable attorneys' fees as provided pursuant to 15 USCS 2310(d)(2)." Civ. R. 8(A) provides: "A pleading which sets forth a claim for relief *** shall contain *** a short and plain statement of the claim showing that the pleader is entitled to relief ***." This court finds that Aluminum Line's pleading is sufficient. The trial court erred in ruling otherwise. The Act creates a cognizable cause of action in state courts against suppliers and warrantors for breach of both written and 4/ implied warranties. 15 U.S.C.S. 2310(d)(1). The written warranty provided to Aluminum Line by Rolls Royce complies with the "limited warranty" definition and requirements set forth in the Act. 15 U.S.C.S. 2303(a)(2). Aluminum Line is entitled to attorney's fees since this court previously determined Aluminum Line prevailed on its claim that 4/ 15 U.S.C.S. 2310(d)(1): "Subject to subsections (a)(3) and (e), a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this title [15 USCS 2301 et seq.], or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief-- "(A) in any court of competent jurisdiction in any State or the District of Columbia; * * * * * *" (Emphasis added.) - 16 - Rolls Royce breached the written warranty. 15 U.S.C.S. 5/ 2310(d)(2). Aluminum Line is precluded from seeking attorney's fees under the Act from Qua Buick based on the breach of written warranty. Rolls Royce only, as the provider of the written 6/ warranty, is liable for the fees. 15 U.S.C.S. 2310(f). However, Qua Buick remains subject to an order to pay attorney's fees to Aluminum Line if there is a breach of implied warranty. 15 U.S.C.S. 2310(d)(1). 7/ R.C. 1302.27 provides: 5/ 15 U.S.C.S. 2310(d)(2): "(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate." (Emphasis added.) 6/ 15 U.S.C.S. 2310(f): "Warrantors subject to enforcement of remedies. For purposes of this section, only the warrantor actually making a written affirmation of fact, promise, or undertaking shall be deemed to have created a written warranty, and any rights arising thereunder may be enforced under this section only against such warrantor and no other person." (Emphasis added.) 7/ 15 U.S.C.S. 2301(7) provides: "The term 'implied warranty' means an implied warranty arising under State law (as modified by sections 108 and 104(a)) [15 USCS 2308 and 2304(a)] in connection with the sale by a supplier of a consumer product." (Emphasis added.) - 17 - "(A) Unless excluded or modified as provided in section 1302.29 of the Revised Code, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * * "(B) Goods to be merchantable must be at least such as: "(1) pass without objection in the trade under the contract description; and "(2) in the case of fungible goods are of fair average quality within the description; and "(3) are fit for the ordinary purposes for which such goods are used; and "(4) run, within the variations permitted by the agreement, of even kind, quality and quantity, within each unit and among all units involved; and "(5) are adequately contained, packaged, and labeled as the agreement may require; and "(6) conform to the promises or affirmations of fact made on the container or label if any. * * *" In the case sub judice, as already stated, the Rolls Royce's warranty failed of its essential purpose as a result of the Rolls Royce's defective condition. Aluminum Line was thus entitled to recover for breach of implied warranties. See, Nearhouse, supra, paragraph one of the syllabus. Appellant's fourth assignment of error is sustained. VI. Appellant's fifth assignment of error provides: "The lower court erred in excluding evidence of the reasonable rate of interest for the applicable time period." - 18 - Aluminum Line is entitled to incidental and consequential damages because the written warranty failed of its essential purpose. R.C. 1302.93(B); see Goddard, supra. R.C. 1302.89 sets forth a non-exhaustive list of incidental and consequential damages: "(A) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses, or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. "(B) Consequential damages resulting from the seller's breach include: "(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and "(2) injury to person or property proximately resulting from any breach of warranty." Aluminum Line attempted to introduce the company's cost of having $95,318 out of its control for approximately 7 1/2 years into evidence by establishing the interest on the purchase price. The trial court excluded this evidence. The trial court's ruling was proper. The terms of R.C. 1302.89 do not authorize such damages. Lost interest resulted from the purchase of the vehicle and not the appellee's breach of warranty. Appellant's fifth assignment of error is overruled. Judgment reversed and cause remanded for the sole determination of the issue of attorney's fees. Aluminum Line - 19 - failed to introduce evidence with reasonable certainty on the issue of damages for breach of warranties. Kinetico, Inc. v. Independent Ohio Nail Co. (1984), 19 Ohio App. 3d 26, citing restatement of the Law 2d, Contracts (1981), 144 Sec. 352; Rhodes v. Rhodes Industries, Inc. (Mar. 28, 1991), Cuyahoga App. No. 58359, unreported. It is thus not entitled to said damages. - 20 - This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. BLACKMON, J., CONCURS; J.F. CORRIGAN, P.J., CONCURS IN PART AND DISSENTS IN PART (See Separate Opinion). SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59790 : ALUMINUM LINES PRODUCTS CO. : : : C O N C U R R I N G Plaintiff-Appellant : : A N D vs. : : D I S S E N T I N G : ROLLS-ROYCE MOTORS, INC., ET AL : : : Defendants-Appellees : : DATE: APRIL 2, 1992 J.F. CORRIGAN, J., DISSENTING IN PART: I concur in the majority's disposition of plaintiff's first, second, and third assignments of error (i.e. the determinations that the limited warranty at issue failed of its essential purpose, that plaintiff presented insufficient evidence of the value of the vehicle as accepted, and that plaintiff's revocation of its acceptance was legally ineffective). However, because plaintiff failed to establish entitlement to damages or revocation, I do not find plaintiff to be a "prevailing party" who is entitled to attorneys' fees under Section 2310(d), Title 15 U.S. Code. I therefore respectively dissent from the majority's disposition of plaintiff's fourth assignment of error, - 2 - and the majority's concomitant remand for a determination of the attorneys' fees to be awarded. Section 2310(d), Title 15 U.S. Code sets forth the civil remedy provisions of the Magnuson-Moss Warranty Act, and provides in relevant part as follows: (d) Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims. (1) Subject to subsections (a)(3) and (e), a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this title [15 USCS 2301 et seq.], or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief - (A) in any court of competent jurisdiction in any State or the District of Columbia; or (B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection. (2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate. (Emphasis added.) Thus, under the language of this statute, where the consumer is damaged, he may bring a suit for damages, and if he prevails, he may obtain attorneys' fees as part of the judgment. The clear import of this statute therefore indicates that if the consumer - 3 - is unable to prove any damages, then he has not "prevailed" and is not entitled to attorneys' fees. In this regard, the statute differs from other consumer rights statutes which recognize and automatically award nominal damages resulting from proscribed acts, and this automatic award of nominal damages in turn supports an additional award of attorneys' fees. See, e.g., R.C. 1345.09(B). Further, in Eckman v. Columbia Oldsmobile, Inc. (December 20, 1989), Hamilton App. C-880668, unreported, the Hamilton County Court of Appeals determined that plaintiffs who had not proved entitlement to damages were not "prevailing party" within the meaning of Section 2310(d), Title 15. In Eckman, supra, the court affirmed summary judgment for defendants in plaintiffs' action for damages pursuant to R.C. Chapter 1345, and 15 U.S.C. 2301 et seq. because the plaintiffs elected to rescind the sale of the vehicle at issue and were therefore precluded from obtaining damages. The court then determined that plaintiffs were thus not "prevailing parties" and not entitled to attorney's fees: "The Eckmans also challenge the trial court's failure to award them costs of litigation and attorneys' fees under either OCSPA, R.C. 1345.09(F), or the Magnuson-Moss Warranty Act, Section 2310, Title 15 U.S. Code. Under both statutes, the award of litigation costs and attorneys' fees to a prevailing party lies within the discretion of the trial court. Although the Eckmans were successful in obtaining rescission of the sale shortly after filing their complaint, they cannot be considered to be the prevailing parties in the ensuing - 4 - litigation in which additional damages were sought." Id., unreported at 5. Similarly, in Haynes v. George Ballas Buick-GMC Truck (Dec. 21, 1990), Lucas App. L-89-168, unreported, the court affirmed a directed verdict for the defendants where the plaintiff brought suit under the Magnuson-Moss Warranty Act for breach of implied and express warranties. The court stated: "appellant was required to prove with regard to the claim of a breach of express warranties, that the manufacturer's remedy of repair or replacement of parts failed of its essential purpose. We need not reach the issue of whether appellant met her burden of proof as to this issue because even if a jury could conclude that the remedy failed of its essential purpose, appellant has failed to meet her burden of proof that she suffered economic loss due to the breach of the written warranty. "At trial, appellant testified that she paid $15,616 for the vehicle as proof of the value of the vehicle as warranted. However, she did not present any evidence as to the actual value of the car at the date and place of sale. On direct examination, she testified that the value of the car was zero because of all the problems she had with it. She also testified that the car was worth less to her than the car which she traded in for the new car. "*** "Reasonable minds could only conclude that appellant did not meet her burden of proof with regard to the issue of damages. "Therefore, the trial court properly directed a verdict in favor of the manufacturer with regard to the claims against the manufacturer for breach of express and implied warranties." - 5 - Id., unreported at 22-24. Thus, in the absence of evidence of damages, plaintiff did not "prevail" in her claim under the Act. Cf. Winrod v. Ford Motor Co. (1988), 53 Ohio App. 3d 94, 97 (several factors should be taken into account to determine the reasonableness of attorney fees and one important factor is the result achieved at trial). In this case, the panel unanimously agrees that plaintiff failed to prove the value of the vehicle as accepted, and therefore failed to prove damages, and that plaintiff's revocation was ineffective. I therefore believe that it is incorrect to deem plaintiff a "prevailing party" for purposes of awarding attorneys' fees pursuant to Section 2310(d), Title 15, U.S. Code. Finally, even if the plaintiff had prevailed, the issue of whether to award attorney fees is within the discretion of the trial court, as "' [Section 2310, 15 U.S. Code] makes four points clear. First, the use of the permissive language 'may' instead of the mandatory language 'shall' connotes a clear option of the court to allow or not to allow the recovery of costs whether they be attorney's fees or otherwise. Morris v. Timenterial, Inc., 168 Conn. 41, 43, 357 A. 2d 507 (1975). "'Second, if the court allows attorney's fees, such fees may be based on actual time expended. Thus, if the court elects to do so, it may totally exclude otherwise relevant considerations and base its fee calculation solely on the time expended, a procedure which presumably would not otherwise be permissible absent the specific language contained in this statute. - 6 - "'Third, whatever method of calculation is used, the costs must be 'reasonably incurred.' "'Finally, the use of the mandatory language 'shall' in the last phrase of the provision connotes that a determination must be made that an award of attorney's fees is or is not appropriate. The plain meaning of the language 'in its discretion' contained in this phrase, when read together with the other language of the subsection, permits the court to exercise its judgment (1) to award no attorney's fees, or (2) to award attorney's fees based on time only, or (3) to award attorney's fees pursuant to its discretion. *** (Emphasis sic.) Id. at 450- 451, 450 A. 2d at 1169-1170." Winrad v.Ford Motor Co., supra, quoting Hanks v. Pandolfo (Conn. Sup. 1982), 450 A. 2d 1167, 1169-1170. Accordingly, I must respectfully dissent in part. .