COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60816 JUDY HENKEL : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION BRITISH PETROLEUM, INC., dba : SOHIO OIL COMPANY, dba PRO-CARE : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Parma Municipal Court, Case No. 89 CVF 1922. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Edwin J. Wagner, Esq. 5566 Pearl Road Parma, Ohio 44129 For Defendant-appellee: Thomas F. Greve, Esq. Bryan P. O'Malley, Esq. Petro, Rademaker, Matty & McClelland 55 Public Square, #1775 Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Judy Henkel filed this appeal subsequent to a bench trial. The judge rendered a verdict in appellant's favor in the amount of $264.99 for a violation of the Consumer Sales Practices Act, R.C. 1345.02, by defendant-appellee British Petroleum, Inc., dba Sohio Oil Company, dba Pro-Care (Pro-Care). The judge denied appellant's request for attorney fees under R.C. 1345.09. After the trial, the court issued extensive findings of fact and conclusions of law. The findings of fact are consistent with the record. The court found that appellant was the owner of a 1982 Pontiac Grand Prix, which had a minimum of 52,494 miles. The judge went on to state: The Court finds that on August 10, 1988 the Plaintiff brought the vehicle to the Defendant with a mechanical problem, the instructions being given to them as indicated on Joint Exhibit 1 that the vehicle did not start and it needed a possible fuel pump. An examination of the vehicle showed a fuel pump with external fuel leakage and pursuant to the same and upon the authorization of the Plaintiff, a fuel pump was replaced, along with an oil change. The Defendant advised the Plaintiff that the vehicle needed a tune up, but the Defendant advised, as indicated on Joint Exhibit 1, that although the car ran bad, the Plaintiff did not want anything done with it. Subsequent to that and shortly thereafter, the Plaintiff had a tune up on the vehicle done by Hudd's Sunoco. Subsequent to the tune up, the Plaintiff suffered additional problems with the engine and problems with a cooling light indicator being shown. There is testimony that prior to the tune up at Hudd's, that the temperature light may have been on and the - 3 - Plaintiff may have been advised by the Defendant to keep driving with the light on. The Court finds that the Plaintiff advised Defendant on August 10, 1988, that she did not want anything done with it, so any potential advice given by the Defendant prior to August 23, would be irrelevant. The Court further finds that on August 23, 1988 the Defendant towed the Plaintiff's vehicle back to Pro Care's location (all work in this matter having been done at the Defendant's Pro Care location at 6716 Pearl Road, Parma Heights, Ohio, 44130), with the problem that the engine smoked and made noise. The Plaintiff did not pay for this tow pursuant to the guarantee which provides fail safe towing for six months or 6,000 miles. Once the vehicle was returned to Defendant, after examination and diagnosis, the Plaintiff was advised by Defendant that the car needed a new engine, and that the price would be between $1,100.00 and $1,400.00 for said work. The Court then finds that the Plaintiff authorized said work, although the Court finds that the Plaintiff was never presented a written estimate by the Defendant and that they proceeded on said work on an oral basis (although Joint Exhibit 3 indicates that the Plaintiff signed that exhibit, said exhibit was dated October 20, 1988 when the car was delivered back to her and there are no initialings of the requisite sections in the upper left hand corner of the form regarding the waiver of a written estimate or in the alternative, the acknowledgement of having received a written assessment). The Court finds that the Defendant then performed the repair work upon the engine, consisting of the rebuilding of the Defendant's engine, oil filter and change, the installation of other parts and fluids and reinstallation upon the engine. As it specifically relates to the radiator system, the Defendant installed a bypass hose, new antifreeze and six new heater hoses as well as clamps for the same. Additionally, although unrelated to this case, the - 4 - Defendant had repaired a window for the Plaintiff for the sum of $86.67. The Plaintiff was presented with two invoices for all work which totalled $2,064.66. The Plaintiff arrived with a check for $2,300.00 and was additionally upset because she had been told that the repair work would be $1,400.00 "tops." Ultimately, after discussions between various agents of the Defendant and the Plaintiff, the Plaintiff paid Pro-Care the sum of $2,300.00 by check, being the Plaintiff Exhibit A, she received back in cash at a later time a sum of $725.00, so that ultimately she expended the sum of $1,575.00. When deducting the window bill of $86.67, she then ultimately paid the sum of $1,488.33 for the repair of the engine, which was $88.33 more than the oral estimate of a maximum figure. The Court finds that at the time that the engine was reinstalled, including the heaters and other radiator related items as mentioned, that the Defendant performed both a pressure test and visual check and that at the time of the delivery of the vehicle to the Plaintiff in late October, 1988, that the vehicle was in an operable condition. The Court also notes that the radiator was the original radiator and that although it may have been aging and in the process of failing, at that time at least performed its function. The Court further finds that there is testimony in dispute as to whether or not the light was still on after this period and what Defendant's agents may or may not have said. The Court is satisfied that if the light was on and if Defendant's Agent Leo was advised, that in fact the Defendant Leo did advise the Plaintiff in response to keep adding fluid and check the radiator. The judge next made findings as to the state of the odometer, which was apparently not operating. Appellant alleged that the odometer was broken by the appellee, but the court specifically found that "The odometer of the vehicle was broken - 5 - at the time of the initial action and at first was reported to the Defendant with a mileage of 52,494 on 8-10-88." Appellant also testified that when appellee informed her she needed a new engine, she believed she would be provided with a "new" engine. The court concluded: The Court finds that relative to the work done by the Defendant on Joint Exhibit 4, that the condition of the engine as ultimately determined when the engine was torn down, justified the need for an engine repair such as was done by the Defendant. The Court further finds that the Plaintiff received that which was bargained for in that the Defendant sent her engine out to be rebuilt. The Court is satisfied from the testimony that the rebuilding of the engine done by the Defendant consisted of what Plaintiff's expert referred to as a "long block" rebuild, including a magnaflex of the appropriate engine parts. The Plaintiff received that which she bargained for as to the work which was to be done by the Defendant. The Court further finds that subsequent to October 20, 1988, the Defendant had problems with the engine and that the engine light came on, the temperature light was on and the car was steaming. She then had the vehicle towed on or about November 16 to the Defendant, at no charge pursuant to their warranty. At that time the Defendant performed a pressure test and visual test of the radiator and the pressure test indicated that the radiator cap was not holding pressure and the radiator cap was replaced at no charge to the Plaintiff pursuant to the warranties of the Defendant. These tests were done by both the Defendant's witness Roger Kline, as well as the original mechanic who performed the engine work upon the car. At that time the original radiator passed the test for leaks and pressure once the new radiator cap was installed. This included a road test by the Defendant which indicated no - 6 - lights on the dash board and no steam or any other indications of additional problems under the hood. The Court finds that this was the last work which was done by the Defendant. The Court then finds that during the period from November 16 through January 5, 1989 the Defendant drove the vehicle for some unknown number of miles, but that on January 5, the vehicle was towed back to the Defendant with additional complaints regarding the radiator. At that time the Defendant inspected the vehicle and noted a bad radiator. A handwritten notation on Joint Exhibit 6 indicates the words, "no water in car. Tubes so bad that water would not stay in radiator." Additionally, the Court finds from the testimony that an examination of the Defendant's employees indicated that the bottom right side of the radiator was failing at the seams and the tubes. The Plaintiff was advised that the vehicle needed a new radiator and the Plaintiff advised the Defendant that a friend would put in the radiator. Ultimately, on or about January 5, 1989 a radiator was installed in the car by B & L Radiator service, although there is no evidence to indicate as to whether the radiator installed was a new radiator, a used radiator or the Plaintiff's radiator rebuilt. Subsequent to that on February 5, 1989 the Plaintiff took the vehicle to York and Sprague Shell where the two radiator hoses were reinstalled and replaced (there is no testimony to indicate why, after the radiator was replaced that the hoses were not checked or replaced, or, when the hoses were replaced on 2-5-89 along with new coolant, what the nature of the problem was that resulted in that work.) Subsequent to that work the Defendant again had engine problems where ultimately the vehicle was taken to D & K Automotive, where Mr. Ken Hess repaired said vehicle for the sum of $893.85. Ultimately D & K Automotive rebuilt the heads and head gasket, performed an oil change, repaired the lifters and various other miscellaneous repair matters relative to the - 7 - car. Said vehicle has apparently operated in a reasonable manner since then. The judge found for the appellant in the sum of $88.33 which was the overpayment on the estimate given by the appellee as to the cost of the rebuilt engine. The judge trebled the damages as mandated in R.C. 1345.09, and awarded the appellant $264.99. The court found: The Court finds in favor of the Defendant as to this issue of law. The Court is satisfied from the evidence that all of the diagnosis and repair and post repair checks done by the Defendant were done in an ordinary, reasonable and workmanlike manner. The Defendant at no time was either unfair or deceptive to the Defendant as regarding the repairs to her automobile and that all repairs were needed. The Defendant was not the only repairer of this vehicle and in fact the Plaintiff took the vehicle to another mechanic between the initial period of August 10 and the ultimate engine rebuild. The evidence did not indicate why she did not go back to Hudd Sunoco to either complain of the new problem, or to determine if in fact, their work caused the problems relative to the engine. The Court finds that the Defendant was not the cause of any engine failure which was resulted to the point of October 20, 1988. * * * * The Plaintiff had the opportunity to take the car to other mechanics for diagnosis or repair of problems and in fact did take the car to them for other repairs during the history of these proceedings. Up to October 20, 1988 the Defendant committed no unconscionable acts based upon the lack of knowledge of the Plaintiff. Further upon this theory, the Court finds that after October 20, that the Defendant acted in a reasonable manner - 8 - regarding the problems which developed, and their response to the same. The vehicle was towed at no charge pursuant to their agreement on November 16, the item was checked and a repair was made based upon the written warrants which is on the reverse side of all of the Joint Exhibits 1 through 6. At that time when the vehicle was returned to the Plaintiff, the radiator was in a working order, although it was a six to seven year old radiator with, at a minimum, 52,593 miles. The Court then finds that those matters which may have occurred after November 16, 1989 are not the responsibility of the Defendant as it relates to potential cooling problems. The Plaintiff was advised by Employee Leo, to check the fluids and to check the radiator. The Defendant testified that although the vehicle may not have been driven for many miles, that it was driven for short distances and that the vehicle did not over heat. As this as the winter season, it is also possible that the vehicle could have been driven for periods of time, with little or no fluid in the radiator and in cool weather may not have caused an engine over heat condition. This would not relieve the Plaintiff of an ordinary responsibility to see to the regular maintenance of her car and to regularly check all fluid, including oil as well as radiator fluids. When the vehicle was returned to the Defendant on January 5, 1989, the Defendants correctly refused to honor any additional warranty as their warranty, which covers six months or six thousand miles, could not be verified due to the failure of the odometer, even though this Court is of the belief that it had not been driven for more than six thousand miles. Also, an examination of the radiator on January 5, 1989 indicated a problem of failure unrelated to the work of the Defendant. The radiator had failed based upon a clogged tube and the fact that there was no water in the radiator when it was brought to the Defendant. On November 16, 1988 when the vehicle was returned to the Defendant, it had been pressure checked and - 9 - visually checked and coolant, in fact, would therefore have flowed through the system. On this theory, the Plaintiff would not be entitled to any of the subsequent repairs. The Defendant is not responsible for the radiator done on November 5, 1989 as the failure of the radiator was not the result of any of the work of the Defendants. Likewise, the failure of the hoses on February 5, 1989 is not the result of Defendant's other work. Finally, although the engine work done by D & K Automotive in April may have been based upon coolant failure, a sufficient intervening period as to both time and mileage driven on the car after November 16, 1988 is such that this Court cannot, as a matter of fact and law, apply responsibility to the Defendant for any damage that could possibly have been occasioned by any failure on their part as of November 16, 1988, based upon a theory under 1345.03 (B)(1). The court concluded as to repairs to the automobile, appellee did not commit any unfair or deceptive acts (R.C. 1345.02), or any unconscionable acts (R.C. 1345.03). The court did find a violation of R.C. 1345.02 in the failure of appellee's failure to provide a written estimate of the engine replacement, or in the alternative, a waiver of the estimate. As to the request for attorney fees, the court stated: The Court finds that the Plaintiff has not filed this action either groundlessly or in bad faith. This Court also finds that the Defendant did not knowingly commit an act or practice related to the failure to provide the written estimate. The testimony here establishes that the Plaintiff and various of the Defendant's employees were on some friendly basis and that much of the discussions took place between Plaintiff and Defendant's employees both at her employment across the street from Defendant and at Defendant's place of business. The Court is satisfied that the failure to provide the - 10 - written estimates to the Plaintiff were the result of the negligent acts of the Defendant's employees. The Court therefore finds that attorneys fees are not awardable under Section 1345.09 (F). Appellant's first assignment of error. I THE TRIAL COURT ERRED IN THAT IT ABUSED ITS DISCRETION BY RULING CONTRARY TO THE WEIGHT OF EVIDENCE. THE EVIDENCE CLEARLY INDICATES THE DEFENDANT COMMITTED AN UNCONSCIONABLE ACT IN VIOLATION OF ORC 1345.03. As the Supreme Court stated in The C.E. Morris Company v. Foley Construction Company (1978), 54 Ohio St. 2d 279: Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. See Chicago Ornamental Iron Co. v. Rook, 93 OhioSt. 152, 160 (1915); Portage Markets Co. v. George, 111 Ohio St. 775 (1924) (paragraph [281] one of the syllabus); and 3 Ohio Jurisprudence 2d 817, Appellate Review, Section 820, and the cases cited therein. Appellant alleges that appellee violated R.C. 1345.03. This statute states: (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. (B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration: (1) Whether the supplier has knowingly taken advantage of the inability of the - 11 - consumer reasonably to protect his interests because of his physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of an agreement; The judge specifically found that appellant relied on the appellee because of her lack of knowledge. However, the appellant had the opportunity to, and did, take her vehicle to other mechanics for service. The appellant had a fuel pump replaced, but decided to have the tune-up performed elsewhere. When a new radiator was needed, she had the services performed by another company. The resulting repairs to the head gaskets were a result of a failure in the cooling system subsequent to the radiator repairs. The judge had competent, credible evidence as to all of the essential elements of the case upon which to base his decision. We note that appellant argues that appellee had a duty to diagnose a latent defect as set forth in State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St. 2d 151. A latent defect is a defect caused in the manufacturing process, and no evidence of such defect was ever presented to the court. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE TRIAL COURT ERRED IN THAT IT DID NOT ATTRIBUTE THE NEGLIGENT ACTS OF THE DEFENDANT'S EMPLOYEES TO THE DEFENDANT. Appellant's second assignment of error is not well taken. - 12 - Appellant has not pointed to any specific finding by the trial judge which demonstrates that the judge failed to attribute the acts of the employee to the appellee. The trial court did, in fact, state that the appellee violated R.C. 1345.02 by failing to provide a written estimate, or a waiver of a written estimate. This failure was that of an employee, and was attributed to the appellee. Appellant's third and fourth assignments of error. III THE COURT ERRED IN THAT IT ABUSED ITS DISCRETION BY NOT AWARDING THE PLAINTIFF ITS PROPER MEASURE OF DAMAGES AS REQUIRED BY ORC 1345.09. IV THE COURT ERRED BY DENYING THE PLAINTIFF REASONABLE ATTORNEY FEES AS ALLOWED BY ORC 1345.09 (F). In both the third and fourth assignments of error, the appellant is contesting the damages awarded by the judge. R.C. 1345.09 provides for a private remedy for violation of Chapter 1345, and as to damages awardable states: (B) Where the violation was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B)(2) of section 1345.05 of the Revised Code before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02 or 1345.03 of the Revised Code and committed after the decision containing the determination has been made available for public inspection under division (A)(3) of section 1345.05 of the Revised Code, the consumer may rescind the - 13 - transaction or recover, but not in a class action, three times the amount of his actual damages or two hundred dollars, whichever is greater, or recover damages or other appropriate relief in a class action under Civil rule 23, as amended. The trial judge found appellee to be in violation of R.C. 1345.02, and awarded treble damages to the appellant for the amount of actual damage she sustained. We find no error in the award of the trial court. Attorney fees are awardable to the consumer under R.C. 1345.09 as follows: (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. In Bittner v. Tri-County Toyota, Inc. (1991), 58 Ohio St. 3d 143, the Supreme Court held: When making a fee award pursuant to R.C. 1345.09(F)(2), the trial court must state the basis for the fee determination. Absent such a statement, it is not possible for an appellate court to conduct a meaningful review. In the case sub judice, the court held that appellee's employees negligently failed to provide appellant with a written estimate. The court based its finding of negligence on the testimony which established that a friendly relationship existed between appellant and the employees; and the fact that - 14 - discussions regarding her vehicle took place at the appellee's place of business as well as at her place of employment. (Appellant was employed at a bar located across the street from Pro-Care.) The Supreme Court has stated that a trial court may award fees under R.C. 1345.09 where the supplier intentionally committed an act or practice which was deceptive, unfair or unconscionable. Einhorn v. Ford Motor Co. (1990), 48 Ohio St. 3d 27. It is not necessary that the supplier knowingly violate the law, but only that the act which violates the law was intentionally committed. In the circumstances presented here, the judge held that the appellee negligently failed to provide a written estimate. Since the trial court has the discretion to award attorney's fees, there is no grounds for reversal absent an abuse of that discretion. See Bittner, supra. The trial judge did not abuse his discretion given the particular facts and circumstances presented here. Appellant's third and fourth assignments of error are overruled. Appellant's fifth assignment of error. V THE COURT ERRED BY ALLOWING THE DEFENDANT'S WITNESS TO TESTIFY, CONTRARY TO THE RULES OF EVIDENCE, TO THE WORK PERFORMED ON THE PLAINTIFF'S VEHICLE. Appellant is apparently arguing that the trial judge should - 15 - have prohibited the testimony of Roger Klein. The testimony of Mr. Klein is before this court by way of a narrative statement of the trial judge pursuant to App. R. 9. The judge notes that appellant raised a continuing objection to the testimony of the witness on the grounds of his lack of personal knowledge on the grounds of hearsay. Upon close examination of the statement provided by the trial judge, it is apparent that the witness had personal knowledge of the repairs performed on appellant's vehicle. Whether or not portions of the testimony should have been excluded on the grounds of hearsay is not discernable from a narrative statement. This court must presume regularity rather than irregularity in trial court proceedings absent any indication to the contrary. Palmer v. Kaiser Foundation Health (1991), 64 ohio App. 3d 140. Since there is no indication in the record before us that the judge erred in admitting the testimony of Mr. Klein, appellant's fifth assignment of error is overruled. Judgment affirmed. - 16 - It is ordered that appellee recover of appellant its 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 Parma Municipal 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. DAVID T. MATIA., C.J., and FRANCIS E. SWEENEY, J., CONCUR. JAMES D. SWEENEY 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. .