COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60530 JAMES FRANK : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION : ALLSTATE AUTO SALES : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Cleveland Municipal Court No. 90-CVF-03092 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: RAYMOND J. SCHMIDLIN, JR. 29001 Cedar Road - #655 Lyndhurst, Ohio 44124 For Defendant-Appellee: DAVID RODNEY 3210 East Fairfax Cleveland, Ohio 44118 - 2 - JOHN V. CORRIGAN, J.: Plaintiff-appellant James Frank appeals from a judgment of the Cleveland Municipal Court in favor of defendant-appellee Allstate Auto Sales ("Allstate Auto") in plaintiff's action stemming from the breach of an alleged agreement to purchase a 1980 Ford tow truck. Plaintiff filed a single count complaint against defendant in the municipal court, Case No. 90-CVF-03092, purporting to state claims for breach of contract and violations of the Ohio Consumer Sales Practices Act, R.C. 1345.01, et seq., and Magnuson-Moss Act. 15 U.S.C. 2301, et seq. Plaintiff alleged that he entered into an agreement to purchase the 1980 Ford tow truck for $1,500 plus tax and title November 27, 1989 but that defendant refused to complete the agreement and sold the truck to another customer. Defendant denied the substantive allegations. The case proceeded to a bench trial in the municipal court where the parties presented the following sharply conflicting testimony. Plaintiff and his girlfriend, Terry Skufca, testified they went to Allstate Auto's used car lot on November 27, 1989 to exchange two used brake rotors and a car stereo as a down payment on the 1980 Ford tow truck. Plaintiff testified Eugene Fixler, the owner of Allstate Auto, agreed to buy the used car parts for $25 and that salesman Ron Scott agreed to accept the parts as a down payment on the tow truck. Plaintiff and Skufca testified - 3 - that Scott completed the standard form sales agreement subsequently introduced into evidence with the terms of the sale including a balance due of $1,605 payable on December 13, 1989. Plaintiff testified that Ron Scott, the salesman who allegedly sold him the tow truck, had been a personal friend since high school and wrote the following statement on the sales agreement as a joke between them: "Customer is aware truck is a piece of shit." Plaintiff testified that as a result of defendant's failure to deliver the 1980 Ford tow truck he was forced to purchase a replacement 1981 Ford model tow truck for $5,410 five months later. Plaintiff claimed that he also suffered lost profits from his inability to commence the towing business he intended to establish with the original tow truck. As noted above, Allstate Auto presented contradictory testimony from Eugene Fixler and salesman Jack Luster. Ron Scott, the salesman who allegedly signed the sales agreement on behalf of defendant, did not testify. The testimony indicated Ron Scott left Allstate Auto three weeks after the agreement was purportedly signed and could not be located to testify at the trial. Fixler testified that Allstate Auto does not purchase used car parts from individuals and that he did not agree to purchase the brake rotors and stereo from plaintiff for $25. Fixler testified the sales agreement produced at trial by plaintiff had never been recorded in any of the records kept by Allstate Auto - 4 - in the ordinary course of business. He also stated that he would not permit his salesmen to write profanity, such as the statement concerning the poor condition of the tow truck in the case sub judice, on a sales agreement. Jack Luster, the only other used car salesman employed by Allstate Auto during this period, testified that he sold the tow truck to another customer for the identical price of $1,500 plus tax and title on December 1, 1989. Luster testified company procedures would prevent two salesmen from selling the same vehicle and that Scott never informed him that he had already sold the tow truck to plaintiff. The municipal court entered judgment in favor of defendant following the bench trial. Plaintiff timely appeals raising the following sole assignment of error: THE TRIAL COURT'S DECISION IS CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. THE EVIDENCE CLEARLY DEMONSTRATES THAT A CONTRACT WAS FORMED BY THE PARTIES AND THAT DEFENDANT-APPELLEE BREACHED THAT CONTRACT. B. DEFENDANT-APPELLEES ACTIONS ARE IN VIOLATION OF THE OHIO CONSUMER SALES PRACTICE ACT AND VIOLATE THE FEDERAL MAGNUSON-MOSS ACT. C. PLAINTIFF-APPELLANT IS ENTITLED TO DAMAGES ON BREACH OF CONTRACT, OHIO CONSUMER SALES FRAUD AND THE MAGNUSON- MOSS ACT. Plaintiff's sole assignment of error lacks merit. - 5 - The Ohio Supreme Court has stated that when an appellate court is urged to reverse a judgment as being against the weight of the evidence, it exercises a limited prerogative and is guided by the presumption that the findings of the trier of fact are indeed correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 79. As long as some competent credible evidence supports the essential elements of the case, a judgment will not be reversed as against the manifest weight of the evidence. C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Moreover, when neither party requests separate findings of fact and conclusions of law as in the case sub judice, a reviewing court is bound to affirm the judgment of the trial court if, from an examination of the record as a whole, there is some evidence from which the trial court could have reached the ultimate factual conclusions supporting the judgment. Pettet v. Pettet (1988), 55 Ohio App. 3d 128. Accordingly, we shall address plaintiff's three sub-issues seriatim based upon this standard. A. Breach of Contract Plaintiff repeats his closing argument to the trial court under this sub-issue, claiming the evidence demonstrated that Allstate Auto entered into an agreement to sell the 1980 Ford tow truck to plaintiff November 27, 1989 because salesman Ron Scott had actual or apparent authority to enter into the transaction with plaintiff. However, as noted above defendant presented contradictory testimony. - 6 - The trial judge questioned plaintiff and defendant's owner at length concerning the purported transaction to resolve the conflicting evidence and was apparently unpersuaded by plaintiff's answers. Based upon our review of the record sub judice, we conclude there was evidence from which the trial court could infer that no agreement existed between the parties concerning the sale of the 1980 Ford tow truck. There was evidence from which the trial court could conclude the sales agreement was executed by a disgruntled employee who was plaintiff's friend after the date recited in the agreement and who would not appear to testify at trial. Defendant's business records did not reflect that any such transaction with plaintiff took place and defendant's other salesman testified Ron Scott never told him the vehicle was sold to plaintiff or anyone else prior to the ultimate sale two days later to another customer for the identical price. Moreover, even if the transaction in fact occurred on the date recited in the sales agreement, defendant provided evidence plaintiff was aware the agreement was not binding without further approval. Accordingly, plaintiff's citation to Ammerman v. Avis Rent A Car (1982), 7 Ohio App. 3d 338, to support his argument to the contrary is misplaced. Fixler testified the Allstate Auto sales office displayed a prominent sign informing customers such as plaintiff that sales agreements required formal management approval. Moreover, the terms of the standard form sales - 7 - agreement produced by plaintiff in the case sub judice specifically stated immediately below plaintiff's signature that the agreement was "[n]ot binding unless accepted by Dealers Authorized Agent ...." Plaintiff admitted that Fixler's approval was necessary on the one occasion he entered an agreement with Allstate Auto to perform auto repair work for defendant. Finally, although plaintiff testified that he had purchased two other used vehicles from Ron Scott at Allstate Auto and didn't know any additional approval was necessary for the agreement to be binding, the trial court could have concluded based upon the terms of the sales agreement and sign that plaintiff knew Ron Scott lacked authority to make a binding agreement. Accordingly, plaintiff's first sub-issue is overruled. B. Statutory Causes of Action Plaintiff likewise argues the trial court improperly denied his claims based upon the Ohio Consumer Sales Practices Act and federal Magnuson-Moss Act. However, we note that since the parties reached no enforceable agreement concerning the tow truck as discussed above, plaintiff could not maintain an action under either theory. Moreover, even if the parties entered into a valid sales agreement concerning the 1980 Ford tow truck, the record demonstrates plaintiff failed to state a claim under either - 8 - statute since plaintiff testified the vehicle was purchased for a business purpose. The Ohio Consumer Sales Practices Act applies to "consumer transactions." R.C. 1345.01(A) defines "consumer transactions" and provides in pertinent part: "Consumer transaction" means a sale, *** to any individual for purposes that are primarily personal, family or household, or solicitation to supply any of these things. (Emphasis added.) Individuals purchasing goods for business purposes, such as the 1980 Ford tow truck in the case sub judice, fail to state a claim under this act. Kraft, Inc. v. Herold Salads, Inc. (Nov. 13, 1986), Cuyahoga App. No. 51265, unreported; Toledo Metro Federal Credit Union v. Ted Papenhagen Oldsmobile, Inc. (1978), 56 Ohio App. 2d 218, 221-222. Since plaintiff failed to produce any evidence at trial that he purchased the 1980 Ford tow truck primarily for personal, family or household use, the trial court properly rejected his claim based upon the act. Gapas v. Hambleton (Nov. 20, 1980), Cuyahoga App. No. 42012, unreported. Plaintiff's claim under the Magnuson-Moss Act was properly denied for similar reasons since plaintiff failed to produce any evidence the 1980 Ford tow truck constituted a "consumer product" within the scope of its provisions. 15 U.S.C. 2310(d)(1) defines "consumer product" as follows: (1) *** any tangible personal property which is distributed in commerce, and which is normally used for personal, family, or household purposes ***. (Emphasis added.) - 9 - Plaintiff did not produce any evidence that tow trucks such as in the case sub judice are normally used for personal, family or household purposes. Plaintiff's testimony revealed that he desired to purchase the tow truck exclusively for use in his new business named "Jim's Towing Service." As a result plaintiff's claim under the Magnuson-Moss Act was properly denied. See, e.g., Crume v. Ford Motor Company (Or. App. 1982), 653 P.2d 564 (flat bed truck). Accordingly, plaintiff's second sub-issue is overruled. C. Damages Finally, plaintiff contends the trial court improperly failed to award lost profits and other damages allegedly resulting from defendant's breach of the sales agreement and statutory causes of action. However, since the trial court could have properly concluded that plaintiff failed to establish the breach of valid agreement or violations of the Ohio Consumer Sales Practices Act or Magnuson-Moss Act as discussed above, the trial court properly declined to award any damages. We note that even if plaintiff established defendant breached the alleged sales agreement for the 1980 Ford tow truck, the trial court's judgment declining to award lost profits or any other damages was not against the weight of the evidence. Plaintiff failed to produce anything more than speculation to support an award of lost profits. Although plaintiff produced receipts from other tow truck operators in the area to - 10 - demonstrate the going rate for towing services, plaintiff did not produce any evidence to demonstrate any amount of lost profits for the five month delay in establishing plaintiff's towing business "with reasonable certainty." Digital Design Corp. v. Horth Supply Co. (1989), 44 Ohio St. 3d 96; Kinetico, Inc. v. Independent Ohio Nail Co. (1984), 19 Ohio App. 3d 26. Plaintiff did not have any experience conducting such a business prior to the alleged breach and produced no evidence of the volume of lost towing services, costs of operating the business or profit margin. The trial court's finding plaintiff failed to prove any damages resulting from the alleged breach by purchasing a substitute vehicle is not against the weight of the evidence. Although plaintiff testified that he purchased a 1981 Ford tow truck for $5,410 five months after defendant purportedly breached the sales agreement and sold the original tow truck to another customer, the trial court could have properly discounted this evidence. Defendant's testimony indicated the vehicles were not comparable and the tow truck plaintiff ultimately purchased was in substantially better condition. Defendant did not dispute that the 1980 Ford tow truck plaintiff desired to purchase from Allstate Auto was substantially deteriorated and replete with defects. The trial court was justified in concluding based upon defendant's testimony the newer tow truck plaintiff ultimately purchased was - 11 - in better condition and that the difference in price between the two vehicles was equal to the cost of repairs plaintiff would have been required to make the older truck serviceable. Plaintiff's contention that defendant admitted the value of the 1980 Ford tow truck was $3,000, or double plaintiff's alleged purchase price, lacks merit. The trial transcript reveals defendant's testimony that Allstate Auto bought the truck for $3,000 two years before the disputed sale. However, the evidence indicated the truck subsequently deteriorated from use during the ensuing two years and was eventually sold to another customer for the identical price of $1,500 plaintiff claims he agreed to pay. In short, the trial court was justified in concluding plaintiff failed to prove that he made a "shrewd" deal and was deprived of the "benefit of his bargain" by the alleged breach. Accordingly, plaintiff's third sub-issue is overruled. Based upon our review of the record sub judice, we are unable to conclude the judgment of the trial court is against the weight of the evidence. Accordingly, plaintiff's sole assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee(s) recover of appellant(s) costs 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 Cleveland Municipal 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. J. F. CORRIGAN, P.J., CONCURS; BLACKMON, J., CONCURS IN JUDGMENT ONLY JUDGE JOHN V. CORRIGAN* *Judge John V. Corrigan, Retired, Eighth Appellate District, Sitting by Assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .