COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61176 EUGENE J. PLAGA : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION GPV PERFORMANCE, INC. : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 17107. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Gerry Davidson, Esq. Paul W. Yates Co., L.P.A. 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-appellee: John A. Daily, Esq. Daily, Codrea & Sager 500 Courtyard Square 80 South Summit Street Akron, Ohio 44308 - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Eugene Plaga filed this appeal after a bench trial which rendered a verdict for appellant in the sum of $1,899.66 against defendant-appellee GPV Performance, Inc. Although the appellant prevailed, the trial judge dismissed appellant's cause of action under the Ohio consumer Sales Practices Act. In the trial court's judgment entry, the facts are set forth as follows: This was a non-jury action that was tried to the Court. The plaintiff in this case was the owner of the 1965 Dodge Traco Motorhome. It apparently had not (sic) engine or transmission. He contacted the defendant on or about September 6, 1988 with respect to procuring a used motor to be rebuilt by the defendant, and, it, together with a used transmission, installed in the Motorhome. The Motorhome was towed to the defendant's place of business. The defendant had been unable to procure a suitable used engine and the plaintiff himself did buy one from the ABC Auto Wrecking. The purpose of the new engine was to put a 440 Dodge engine in the Motorhome, which had previously been operated by a 318 Dodge motor. The parties got together on September 6, 1988, and discussed the work the plaintiff anticipated having done. An estimate was provided to him without having seen the vehicle. The estimate was from between $2,500.00 to $3,000.00, including the motor and the transmission and accessories to be installed in the vehicle. The plaintiff paid $1,000.00 on that occasion and he then purchased the used engine, for which he paid $300.00. Plaintiff contended that this was to be at the expense of the defendant. The defendant testified he wasn't sure who was supposed to pay for it. The engine was procured with the transmission. The engine was rebuilt by the - 3 - defendant and installed by the defendant. There were various delays in connection with this transaction and finally the vehicle was delivered to the plaintiff. However, the plaintiff contended that the exhaust was improperly installed; that the speedometer didn't work; and that it had no emergency brake. The plaintiff made instalment payments totaling $4,000.00, and when it was time to deliver the vehicle the defendant contended that it was owed an additional $1,110.19, which the plaintiff, under protest, paid. The court then made the following findings: The case was filed based on a claim of breach of contract and certain warranties. The plaintiff also contended that he was entitled to recover under the Ohio Consumers Sales Practices Act. Under this act he could receive his attorney's fees and triple damages. Upon consideration of all the evidence, the Court finds that this case does not warrant a finding that there was a violation of the Ohio consumers Sales Practices Act, and that cause of action is dismissed. The Court does, however, find that the plaintiff is entitled to a credit for the $300.00 that he paid for the engine, and that he did procure some accessories or connections for the defendant, including gauges at $53.34; hoses at $29.96; and another for $29.96. The speedometer was not working, for which he should be reimbursed, approximately $30.00; the exhaust was not connected to the rear of the vehicle, but at a point in proximity to an installed air conditioner in the vehicle. Further, that the emergency brake was not working. The testimony was that the defendant advised the plaintiff that because of the age of the vehicle, a brake bracket connection in accordance with the design of the vehicle, could not be then procured, and that a different arrangement would have to be made - 4 - at additional cost to the plaintiff. The plaintiff did not agree to make such payment, and the vehicle was delivered without an emergency brake being connected. The plaintiff was advised of the problems and of the required charges. All of which he agreed to. There were some not unusual delays in completion of defendant's work. The plaintiff is, therefore, entitled to credits or reimbursement as follows: Items for which he was wrongfully charged: Radiator $ 466.52 Average Dual Exhaust 250.00 TOTAL $ 716.52 Items plaintiff paid, which defendant should have paid: Engine $ 300.00 Gauges 53.34 Hoses 29.96 29.96 CND 104.75 Flash Company 85.00 TOTAL $ 603.81 Items requiring fixing, which should be paid by the defendant: Speedometer $ 30.00 Emergency Brake 200.00 Exhaust 100.00 TOTAL $ 330.00 TOTAL OF 3 ITEMS $1,649.53 Sales Tax on $716.52 is $ 50.15 TOTAL $1,699.68 Sanctions - per Judge Nugent $ 200.00 - 5 - TOTAL $1,899.68 Judgment is, therefore, rendered in favor of the plaintiff and against the defendant for the sum of One Thousand Eight Hundred Ninety-Nine Dollars and Sixty-eight Cents ($1,899.68), plus interest at ten percent (10%) per annum from January 1, 1990 and costs hereof. We adopt the court's statement as set forth, however, the evidence also reflects that the appellee never asked appellant whether or not he wanted the used parts from the vehicle returned. Although appellant did request that the parts be returned, the appellee had thrown them away. Appellant's first and second assignments of error. I THE TRIAL COURT ERRED IN FINDING THAT THIS CASE DOES NOT WARRANT A VIOLATION OF THE OHIO CONSUMERS SALES PRACTICE ACT, THEREBY ENTERING A JUDGMENT WHICH IS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II THE TRIAL COURT ERRED IN ITS FINDINGS AND CALCULATION OF DAMAGES AWARDED TO PLAINTIFF- APPELLANT, INCLUDING ITS FAILURE TO AWARD PLAINTIFF-APPELLANT THREE TIMES THE AMOUNT OF HIS ACTUAL DAMAGES AND ATTORNEY FEES, THEREBY ENTERING A JUDGMENT WHICH IS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The transaction in the case sub judice clearly meets the definition of a consumer transaction pursuant to R.C. 1345.01. Appellant argues that the appellee committed an unfair or deceptive act under R.C. 1345.02, by materially understating or - 6 - misstating the estimated cost of the repairs, and by failing to return the used parts from the motor vehicle. R.C. 1345.05 mandates the Ohio Attorney General to promulgate rules which define with reasonable specificity acts or practices which violate R.C. 1345.02. Ohio Adm. Code 109:4-3-13 regulates motor vehicle repairs and services, and the pertinent sections are as follows: (C) In any consumer transaction involving the performance of any repair or service upon a motor vehicle it shall be a deceptive act or practice for a supplier to: * * * (11) Materially understate or misstate the estimated cost of the repair or service: * * * (13) Fail to tender to the consumer any replaced parts, unless the parts are to be rebuilt or sold by the supplier, or returned to the manufacturer in connection with warranted repairs or services, and such intended reuse or return is made known to the consumer prior to commencing any repair or service; * * * Damages for violations of R.C. 1345.01 et seq. are set forth in R.C. 1345.09. Section (B) provides for the recovery of treble damages: (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 - 7 - 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 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 recovery of attorney fees is separately delineated in Section (F): (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: (1) The consumer complaining of the act or practice that violated this chapter has brought or maintained an action that is groundless, and the consumer filed or maintained the action in bad faith; (2) The supplier has knowingly committed an act or practice that violates this chapter. The testimony of both appellant and of Mr. Peter Pavlik, who was responsible for the repairs to appellant's vehicle, agree that the used parts were not tendered to the appellant. Upon appellant's request for the parts, he learned they had been disposed of. This constitutes a prima facie violation of Ohio Adm. Code 109:4-3-13(C)(13), and as there is no scienter requirement in R.C. 1345.09(B), the appellant is entitled to treble damages. - 8 - Appellant is also entitled to an award of attorney fees pursuant to R.C. 1345.09(F)(2). In Einhern v. Ford Motor Co. (1990), 48 Ohio St.3d 27, the Supreme Court stated: This legislative purpose is better safeguarded by finding that "knowingly" committing an act or practice in violation of R.C. Chapter 1345 means that the supplier need only intentionally do the act that violates the Consumer Sales Practices Act. The supplier does not have to know that his conduct violates the law for the court to grant attorney fees. This reasoning is found in cases such as Brooks v. Hurst Buick- Pontiac-Olds-GMC (1985), 23 Ohio App. 3d 85, 23 OBR 150, 491 N.E.2d 345. We find that the plain meaning of R.C. 1345.09(F)(2) dictates the Brooks result and comports with the legislative intent. The language "* * * knowingly committed an act or practice that violates this chapter" requires that for liability to attach, a supplier must have committed a deceptive or unconscionable act or practice. This conduct must violate the Consumer Sales Practices Act. The statutory language does not state that the supplier must act with the knowledge that his acts violate the law, as appellee contends. "Knowingly" modifies "committed an act or practice" and does not modify "violates this chapter." To find otherwise would deny attorney fees to consumers even though the supplier might have blatantly violated the Consumer Sales Practices Act. Such a conclusion flies in the fact of the common-law maxim that ignorance of the law is no excuse. Roberts & Martz, supra, at 957. Thus, pursuant to R.C. 1345.09(F)(2), a trial court may award a consumer reasonable attorney fees when the supplier in a consumer transaction intentionally committed an act or practice which is deceptive, unfair or unconscionable. - 9 - Although we reverse the trial judge's decision that no violation of R.C. 1345.01 et seq. occurred, we affirm the determination of the amount of damages suffered by the appellant. 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. The judge heard competent, credible evidence which enabled him to render a decision on the amount of damages due appellant. In addition, since a violation of Ohio Adm. Code 109:4-3- 13(C)(13) occurred, we need not reach the issue of whether or not appellee also violated Ohio Adm. Code 109:4-3-13(C)(11). Appellant's first and second assignments of error have merit, and this case is remanded to the trial court for a trebling of damages and a determination of reasonable attorney fees. Appellant's third assignment of error. III THE TRIAL COURT ERRED IN PERMITTING THE DEFENDANT-APPELLE (SIC) TO OPPOSE PLAINTIFF- APPELLANT'S CLAIMS AND ALLOWING IT TO INTRODUCE DOCUMENTS INTO EVIDENCE, IN FAILING TO DESIGNATE PLAINTIFF-APPELLANT'S ALLEGATIONS AS FACTS ESTABLISHED FOR THE - 10 - PURPOSES OF THIS LITIGATION, AND IN FAILING TO AWARD PLAINTIFF-APPELLANT A REASONABLE SUM FOR ATTORNEY FEES AND EXPENSES INCURRED IN CONNECTION WITH HIS MOTION TO COMPEL DISCOVERY AND MOTION FOR SANCTIONS, ATTORNEY FEES AND PROTECTIVE ORDER, ALL OF WHICH WERE GRANTED BY THE TRIAL COURT PRIOR TO TRIAL, THEREBY RESULTING IN AN ABUSE OF DISCRETION BY THE TRIAL COURT. During the pendency of the litigation, the originally assigned judge granted appellant's motion "for sanctions, attorney fees and protective order." The order also stated that fees, if any, were to be determined at the time of trial. (Vol. 1213, p. 733.) The judge did not state with specificity which particular sanctions should be imposed. The case was assigned to a visiting judge to conduct the trial. At trial, appellant argued that the order of the assigned judge prohibited the appellee from presenting evidence. Appellant premised this argument on the fact that this was a sanction requested in the motion which was granted by the 1 assigned judge. The visiting judge reviewed the order of the 1 The sanctions requested by the appellant are as follows: Plaintiff contends that defendant has failed to comply with the Rules of Discovery and will continue to do so, and that, as a result of his actions herein, requests an order from this Honorable Court granting him all sanctions available under the Civil Rules, including, but not limited to, a finding of contempt against the defendant; judgment by default against the defendant or, in the alternative, an order refusing the defendant to oppose plaintiff's claims and prohibit him from introducing any documents into evidence; an order designating the plaintiff's - 11 - assigned judge, and stated that he found no order which prohibited the appellee from presenting evidence (T. 153). The judge did award the appellant the sum of two hundred dollars as a sanction pursuant to the order of the assigned judge. The trial judge has broad discretion to impose sanctions for failure to comply with discovery requests. As the court stated in Russo v. Goodyear Tire & Rubber Co. (1987), 36 Ohio App.3d 175, at syllabus 3: 3. It is exclusively within the trial court's discretion to determine the particular sanction to be imposed for a violation of the discovery rules. In deciding, the trial court should look to several factors; the history of the case; all the facts and circumstances surrounding the noncompliance, including the number of opportunities and the length of time within which the faulting party had to comply with the discovery or the order to comply; what efforts, if any, were made to comply; the ability or inability of the faulting party to comply; and such other factors as may be appropriate. We find no abuse of discretion in declining appellant's myriad of sanction requests and imposing a monetary sanction of $200.00. Appellant's third assignment of error is overruled. allegations as facts established for the purposes of this action; and for an order granting him a reasonable sum for attorney fees and expenses incurred in connection with the previous Motion to Compel Discovery and this Motion for Sanctions, Attorney Fees and Protective Order. - 12 - Judgment reversed and remanded for a calculation of damages and determination of attorney fees. - 13 - This cause is reversed and remanded. It is, therefore, considered that said appellant(s) recover of said appellee(s) his 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. ANN DYKE, P.J., and LEO M. SPELLACY, 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. .