COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66215 : DANIEL J. CALLOWAY : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GEORGE FEHER : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Rocky River Municipal Court Case No. 92-CVH-700 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: GREGORY ROBEY, ESQ. GEORGE L. NYERGES, ESQ. Robey & Robey 2012 W. 25th Street 4825 Turney Road Suite 803 Cleveland, Ohio 44125 Cleveland, Ohio 44113-4189 - 2 - O'DONNELL, J.: The appeal presented to us in this case concerns issues surrounding the sale of a salvage 1989 Mercury Cougar motor vehicle sold by appellant George Feher to appellee David Calloway and alleged errors of law committed by the trial judge during trial and in entering judgment. Relevant facts suggest that Feher originally purchased the salvage vehicle for $4250 in April, 1991. He replaced the bumper, windshield, fender, headlights, hood, face bar assembly, and he repainted the vehicle. Thereafter, it was inspected by the state highway patrol and a salvage title was issued in his name as owner. One month prior to the sale to Calloway, a new title was issued to Feher which was devoid of the salvage notation. On September 21, 1991, Feher resold the vehicle to Calloway for $8500. However, when Calloway applied for the title in his name, he falsely listed the purchase price at $5500 presumably to reduce his sales tax liability with the State of Ohio. On June 1, 1992, Calloway filed suit in the Rocky River Municipal Court alleging Feher failed to disclose vehicle defects and induced the purchase by making false and fraudulent statements. The case proceeded to a bench trial on July 22, 1993. At trial, Calloway presented testimony from Don Fredette, an expert, who testified in response to the judge's question that the value of the vehicle as of the time of trial, was "less than - 3 - salvage" because of poor repairs to the frame. Feher testified at trial that he sold the vehicle to Calloway in "as is" condition, that this car has a unibody construction, and that he did not know of any damage to the frame. Feher further argues that the court's denial of his opportunity to inspect the vehicle prior to trial precluded his ability to determine if the vehicle had been in an accident subsequent to the sale date. On August 16, 1993, three weeks after the trial ended, the court entered judgment for Calloway in the sum of $8500, thus leaving the buyer with the vehicle, a judgment for the full purchase price at the time of the sale, and complete use of the vehicle for this twenty-three-month interval. Feher appealed, but failed to transmit the record and this court dismissed the appeal. Upon reinstatement of the appeal, we remanded the case to the trial court for a ruling on a motion for relief from judgment, but the court denied that motion, and also refused to prepare findings of fact and conclusions of law. When the parties prepared an agreed statement of proceedings, the trial judge eventually did modify and sign the statement, but only after an order of this court was issued instructing the lower court to comply with App.R. 9(C) and (D). On appeal, Feher raises four assignments of error. We shall consider the first three together. I. THE TRIAL COURT ERRED IN ITS INTERPRETATION OF THE ORAL CONTRACT FOR THE SALE OF THE 1989 REPAIRED USED SALVAGE MERCURY COUGAR BY THE APPELLANT GEORGE FEHER TO APPELLEE DANIEL CALLOWAY. - 4 - II. THE TRIAL COURT ERRED AND MISUNDERSTOOD THE TESTIMONY OF APPELLEE'S WITNESS DONALD FREDETTE PURPORTEDLY OF THE A & H BODY & FRAME COMPANY WHO CLAIMED TO HAVE INSPECTED THE 1989 MERCURY COUGAR ON OR ABOUT NOVEMBER 13, 1992, 14 MONTHS AFTER THE SALE ON SEPTEMBER 21, 1991, AND CONTINUOUSLY IN THE POSSESSION OF SAID APPELLEE. III. THE TRIAL COURT ERRED IN FAILING TO GIVE THE APPELLANT A FAIR AND IMPARTIAL HEARING ON THE ISSUES OF THIS LAWSUIT AND GRANTING A $8,500.00 JUDGMENT IN FAVOR OF THE PLAINTIFF APPELLEE ON AUGUST 16, 1993, AGAINST THE APPELLANT, GEORGE FEHER. Appellant complains that while the court entered judgment against him for the full purchase price of the car plus ten percent interest, the court failed to order the appellee to return the vehicle to him. Appellee believes that the judgment is supported by competent credible evidence. In the second assignment of error, appellant argues the court misunderstood the testimony of the purchaser's expert who examined the vehicle some fourteen months after the sale date and testified as to the vehicle's value as of the time of trial in response to the judge's inquiry. In the third assignment of error, the appellant argues the court denied a fair hearing by failing to consider evidence offered by the appellant. Our review of the record supports the arguments of the appellant. While the trial court entered judgment for plaintiff, - 5 - the record is silent as to the findings of the court regarding fraud, misrepresentation or breach. The confused statement of the record, unprofessionally prepared yet transmitted to our court, fails to clarify those findings and the trial court's failure to submit its own findings of fact and conclusions of law is unwarranted. As appellee correctly argues, however, it is not the function of the court of appeals to weigh evidence. Hence, if the record contains evidence to support the trial judge's decision and there is no abuse of discretion, we are bound to accept those findings. In this case, the evidence supports the judge's decision to rescind the contract and order the purchase price returned to the buyer. We therefore accept the judge's finding and legal conclusion on that issue. However, rescission of a contract requires that parties be restored to their status quo positions. See Manhattan Life Ins. Co. v. Burke (1903), 69 Ohio St.294, where the court stated at 302: "*** where a party to a compromise desires to *** be remitted to his original rights he must place the other party in status quo by returning *** whatever has been received by him under such compromise, if of any value ***." Further, the court stated, "*** the rule obtains even though the contract of settlement was induced by the fraud or false representations of the other party;" Basic hornbook law is that, "a defrauded party to a contract may rescind the contract and recover what he has paid *** provided he - 6 - tenders back what he received in performance of the agreement." (Emphasis added.) See 18 Ohio Jurisprudence 3d, Contracts 363. We find that this law was not followed in this case and, by eliciting and relying on important testimony as to the current value of the car, the court lost its impartiality, because it failed to consider the car's value as of the date of the original sale. In this regard, it was improper to award interest on the $8500 judgment since both parties ought to have been restored to their places of beginning. The failure of the court to order the vehicle returned to Feher constitutes plain error. Accordingly, this case is now reversed and remanded with instructions that the judgment of the trial court be modified to reflect the proper measure of damages. Calloway must be ordered to transfer the title to and possession of the vehicle to Feher and Feher is relieved of the obligation to pay interest on the $8500 judgment until such time as the vehicle is returned to him. In view of our disposition of these assignments of error, appellant's fourth assignment, regarding failure to conduct a hearing on the motion for relief from judgment, is moot. Reversed and remanded for further proceedings consistent with this opinion. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. BLACKMON, P.J., and DYKE, J., CONCUR. TERRENCE O'DONNELL 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. .