COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60429 THOMAS ECKERT : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION TONY LARICHE CHEVROLET : : : Defendant-Appellant : DATE OF ANNOUNCEMENT MAY 21, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 133836 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Allison K. Huegel Laurie F. Starr Lewis A. Zipkin Alan G. Starkoff Lewis A. Zipkin Co., L.P.A. Gaines & Stern Co., L.P.A. 2541 Guilford Road 1700 Ohio Savings Plaza Cleveland, Ohio 44118 Cleveland, Ohio 44114 - 1 - ANN McMANAMON, J.: Thomas Eckert sued Tony LaRiche Chevrolet for violations of the Consumer Sales Practices Act (R.C. 1345.02 and R.C. 1345.03) arising from the sale of a used pick-up truck. The case was tried to the bench and, at the close of Eckert's evidence, the auto dealership moved for a dismissal pursuant to Civ. R. 41(B)(2). The court took the motion under advisement and the defense indicated that, regardless of the court's ruling, it would not offer any evidence. The court denied the dismissal motion and found the dealership knowingly violated the statutes. The court awarded Eckert $60,784.86 in treble damages and $6,833.00 in attorney fees. In a timely appeal, the dealership raises three assignments 1 of error. Upon a review of the record, we affirm. Eckert bought the used 1985 diesel one-ton pick-up truck from LaRiche Chevrolet for $14,625.90, including bank loan interest, in February 1987. Before purchasing the vehicle, Eckert asked the defendant's salesman, Joseph Bosworth, about the truck's ownership history and whether the dealership had performed any maintenance work on the truck. According to Eckert, the salesman claimed the truck had one previous owner and, except for replacement of a steering coupler, the dealership had only 1 See Appendix. - 2 - "cleaned up" the vehicle. Eckert told the court he would not have purchased the vehicle if it had more than one owner or if the truck had required mechanical repairs. Eckert stated, "It seems like from the Detroit diesels, once you open them up you have nothing but problems." Finally, the salesman told Eckert that a transferable factory warranty was available from the manufacturer for one hundred to one hundred twenty-five dollars. Eckert acknowledged signing an "As Is" statement when he purchased the truck. Soon after purchasing the vehicle, Eckert experienced problems including a cracked engine head and oil leaks. Eckert was forced to rebuild the motor and replace the engine head, radiator, and thermostat. The truck also required new pump lines, glow plugs, a gas pump, water belt pumps, batteries and a starter. Eckert averred he was without use of the truck for approximately nine months. He documented for the court the costs of the repairs and replacement parts. Eckert's efforts to obtain the factory warranty were unsuccessful. During this process, he spoke with Chris Shannon, who sold the truck to LaRiche Chevrolet. Shannon asked Eckert whether the dealership told him why the truck was there. When Eckert mentioned "something about a steering knuckle," Shannon responded, "No, the motor was blown up." Eckert also learned that Shannon was not the truck's only prior owner. Eckert eventually sold the truck for $5,664.71. - 3 - Salesman Bosworth admitted telling Eckert that the truck had only one previous owner based upon a comment from another salesperson. The salesman also averred that at the time of the sale he was aware of only the steering knuckle defect. Bosworth explained, however, that he personally neither investigated the ownership nor mechanical history of the truck. Finally, Bosworth acknowledged he told Eckert the factory warranty was available for a fifty to one hundred dollar registration fee. Tony LaRiche service manager, Ken Steinmetz, told the court that the diesel truck initially had been towed to the dealership with a bad cylinder head gasket. The defendant repaired the vehicle before offering it for sale. In the first assignment of error, the dealership asserts Eckert failed to establish that the misrepresentations proximately caused his monetary injuries. A judgment supported by some competent, credible evidence shall not be reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Further, the weight to be given the evidence and the assessment of witness credibility is within the purview of the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 81. - 4 - The court found the dealership committed a deceptive consumer sales practice in contravention of R.C. 1345.02 which provides in relevant part: "(A) No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction. "(B) Without limiting the scope of division (A) of this section, the act or practice of a supplier in representing any of the following is deceptive: "(1) That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have; "(2) That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not; "(3) That the subject of a consumer transaction is new, or unused, if it is not; "(4) That the subject of a consumer transaction is available to the consumer for a reason that does not exist; "*** "(10) That a consumer transaction involves or does not involve a warranty, a disclaimer of warranties or other rights, remedies, or obligations if the representation is false." The court also found the dealership's actions constituted an unconscionable consumer sales practice in violation of R.C. 1345.03 which states in pertinent part: "(A) No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. Such an unconscionable act or practice by a supplier violates this section whether it occurs before, during, or after the transaction. - 5 - "(B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration: "*** "(3) Whether the supplier knew at the time the consumer transaction was entered into of the inability of the consumer to receive a substantial benefit from the subject of the consumer transaction; "*** "(6) Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to his detriment." The dealership does not dispute that its salesman misrepresented the ownership and mechanical history of the truck. The defendant instead seems to argue Eckert was required to present expert testimony that each mechanical defect in the truck was related to these misrepresentations. The dealership also contends that, since Eckert is not a mechanic, an auto repair expert was required to establish the repair were necessary and not the result of normal use. Finally, the defendant argues Eckert may have caused some of the mechanical defects in his attempt to repair the truck himself. Although we agree that Eckert was required to prove a relationship between the statutory violations and his injuries, the dealership's argument for expert testimony is inapplicable to the facts of this particular case. Eckert testified that he inquired into the history of the truck and would not have purchased the vehicle if he had known either that it had more than one previous owner, or that the truck had required - 6 - mechanical repairs. Eckert specifically told the court that, "*** once you open them [Detroit diesel engines] up, you have nothing but problems." Eckert also believed that a factory warranty was available on the truck. In light of this evidence, we find the trial court reasonably could conclude that if Eckert had known the truck's history, particularly its engine problems, he would not have purchased the truck and incurred any of the repair expenses. Accordingly, this assignment of error is not well taken. In its second assignment of error the dealership asserts that the "As Is" notice precludes a judgment for Eckert. It is undisputed Eckert read and signed a notice displayed on the truck which stated: "AS IS-NO WARRANTY You Will Pay All costs For Any Repairs. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle." The dealership argues the notice bars Eckert's right to recovery. R.C. 1302.29(C)(1) governs the effects of warranty preclusion clauses in contracts and provides in part: "*** (1) Unless the circumstances indicate otherwise all implied warranties are excluded by expressions like 'as is,' 'with all faults,' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. ***." - 7 - In Maritime Manufactures, Inc. v. Hi-Skipper Marine (1985), 19 Ohio St. 3d 93 the Supreme Court applied R.C. 1302.29(C) to an "As Is" clause in a purchase order form and held that such a clause "*** would normally preclude any claim of implied warranty breach ***." Id. at 94. Maritime, however, addresses only the effect on implied warranties while the instant case involves an express warranty. In Barksdale v. Van's Auto Sales, Inc. (1989), 62 Ohio App. 3d 724, this court found that an "As Is" clause did not disclaim a seller's oral express warranty. The plaintiff in Barksdale purchased a used car with an "As Is - No Warranty" waiver. Before purchasing the auto, the buyer specifically asked about its transmission and was told there was nothing wrong with it. Two days after the sale, the car broke down and required a rebuilt transmission. This court found that the defendant's representation concerning the transmission went beyond "mere puffing" and created an express warranty which was not disclaimed by the "As Is" clause. The court further held: "When a written contract for the sale of goods provides that the goods are sold 'as is' and also disclaims all express and/or implied warranties and such provisions cannot be 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. "In this case, the seller's express oral warranty is entirely inconsistent with the disclaimer in the sales contract. The express oral warranty, therefore, predominates as it would be unjust to allow the disclaimer to withdraw from the parties' agreement the prior affirmations made by the seller concerning the conditions of the transmission." Id. at 728. - 8 - We find the facts in Barksdale similar to those in the instant case. Eckert specifically asked about the truck's ownership and maintenance history. The defendant's salesman told Eckert that the dealership had to "clean up" the vehicle and fix a broken steering knuckle. In fact, the truck had been towed to the dealership for repair of a cracked engine head. As in Barksdale, the salesman's representations to Eckert went to the essence of the bargain and created an express warranty as to the condition of the vehicle. Since the "As Is" disclaimer cannot be reasonably construed as consistent with the defendant's oral express warranty, the express warranty prevails. Id. Thus, the trial court properly determined the "As Is" notice did not bar Eckert from recovery. Accordingly, this assignment of error is overruled. In its third assignment of error the dealership challenges the court's award of damages and attorney fees. The dealership initially disputes the court's calculation of damages. The court determined that Eckert incurred $6,789.74 in repair expenses excluding the costs of routine maintenance. The court further found that Eckert performed a portion of the repairs himself and that his labor should be valued at $4,510.69. Finally, the plaintiff lost $8,961.19 in the subsequent sale of the truck. These amounts total to $20,261.62 which the court - 9 - trebled pursuant to R.C. 1345.09(A). The court, thus, awarded Eckert $60,784.86 in damages. The dealership argues Eckert failed to prove his expenses were proximately caused by its salesman's misrepresentations and consequently Eckert should be limited to the two hundred dollars in damages provided for in R.C. 1345.89. As we discussed in our disposition of the first assignment, Eckert adequately proved the relationship between his damages and the salesman's misstatements. The record contains sufficient evidence that Eckert would not have purchased the vehicle and incurred any of the repair expenses if he had known the vehicle's history. We also reject the dealership's argument that the court erred by not deducting any amount from the damage award for the mileage Eckert put on the truck during the time he owned it. The defendant offered no evidence after Eckert rested his case or in any way attempted to value Eckert's use of the vehicle. Furthermore, we note the court did not increase the award for the value lost to Eckert during the nine months the truck could not be used. We also do not find the court erred by awarding Eckert $4,510.69 for his labor. Eckert testified he was familiar with the costs of mechanical repairs in Cuyahoga County and there is a one to one ratio for labor and parts. The court based its award on this one to one ratio. The defendant voiced no objection to Eckert's testimony and offered nothing to contradict this evidence. - 10 - Finally, the dealership disputes the attorney fee award. R.C. 1345.09 provides, in relevant part: "(F) The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed, if either of the following apply: "*** "(2) The supplier has knowingly committed an act or practice that violates this chapter." The dealership argues the record contains no evidence the salesman "knowingly" violated the consumer sales practices statutes. In Einhorn v. Ford Motor Co. (1990), 48 Ohio St. 3d 27, the Supreme Court held R.C. 1345.09(F)(2) requires only that the supplier knowingly committed the act which violates the statutes, not that the supplier actually knows that his conduct violates the law. Id. at 30. In the instant case, the salesman admitted telling Eckert that the truck had only one previous owner. Eckert also testified the salesman represented the vehicle had no mechanical defects except the steering knuckle. The defendant's service manager, however, testified the truck was towed in for repair of a cracked engine head. Thus, the dealership had knowledge that the truck had a history of engine problems. The fact that the salesman made representations without investigating the truck's background does not shield the dealership from liability for attorney fees. The dealership also argues Eckert failed to demonstrate his attorney fees were reasonable and necessary. The award of attorney fees is left to the sound discretion of the trial court - 11 - and absent a fee so high as to shock the conscience, an appellate court will not disturb the award. Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St. 3d 143, 146. Furthermore, a trial judge who presided over the trial and many of the preliminary proceedings is in a better position to value the services of the lawyers than an appellate court. Id. We find the trial court had sufficient evidence before it to determine the amount of reasonable attorney fees in this case. The plaintiff's attorney testified to the number of hours he expended in preparing Eckert's lawsuit and the details of his legal work. The attorney also explained his hourly rate and compared it with other attorneys in the Cleveland area. The defendant asked no questions of the attorney and did not dispute the evidence offered by the plaintiff. Accordingly, this assignment of error is overruled and the judgment of the trial court is affirmed. - 12 - Judgment affirmed. It is ordered that appellee recover of appellant its ecosts herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. DYKE, P.J. PATTON, J., CONCUR. JUDGE ANN McMANAMON 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. - 13 - APPENDIX I "The trial court committed reversible error in finding for the plaintiff-appellee where there was a complete failure of plaintiff appellee in meeting his burden of proof on the issue of proximate cause." II "The trial court committed reversible error in finding that the defendant-appellant had violated the Ohio Consumer Sales Practice Act where the subject matter of the transaction was sold with a conspicuous 'as is' notice." III "The trial court committed reversible error in its determination and computation of damages in awarding attorney fees." .