COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68398 SANDRA SIMPSON : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CAPITAL VAN & STORAGE COMPANY, : INC. : Defendant-appellee : : DATE OF ANNOUNCEMENT : SEPTEMBER 7, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-227942 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: DENNIS J. POLKE, ESQ. KERRY RANDALL-LEWIS, ESQ. KRAMER & NIERMANN 14650 Detroit Avenue, Suite 3214 Prospect Avenue 450 Cleveland, OH 44115-2600 Lakewood, OH 44107-9946 - 2 - PATTON, C.J. A fire completely destroyed the storage facility of defendant Capital Van and Storage Co. The personal possessions of plaintiff Sandra Simpson were among those items lost in the fire. When Capital's insurance proceeds covered only $4,116 of her claimed loss of more than $150,000, plaintiff filed a complaint naming Capital and co-defendant Allied Van Lines (alleged to be Capital's principal). The complaint alleged Capital breached its contract to provide adequate storage; fraudulently misrepresented the scope of insurance coverage on plaintiff's possessions; and negligently allowed the fire to consume the storage facility. Additionally, the complaint alleged both Capital and Allied negligently inflicted emotional distress and violated portions of the Ohio Consumer Sales Practices Act by engaging in deceptive or unconscionable sales acts. The trial court granted defendants' motion for summary judgment. On appeal, we found the summary judgment motion failed to address plaintiff's claims of fraud and violations of the consumer sales practices act. Accordingly, we dismissed the appeal for want of jurisdiction pursuant to Civ.R. 54(B). See Simpson v. Capital Van & Storage Company, Inc. (Feb. 24, 1994), Cuyahoga App. No. 67640, unreported. On remand, the parties briefed the remaining issues and the court again granted summary judgment in defendants' favor. - 3 - In this appeal, plaintiff assigns one error which argues the trial court erred by granting summary judgment on the issues of fraud and misrepresentation; unconscionability; and alleged 1 deceptive practices under the consumer sales practices act. Plaintiff first argues there is an issue of material fact as to whether defendants misrepresented the amount of insurance coverage protecting her possessions. She maintains one of the drivers who picked up her possessions allayed her fears of loss by telling her the possessions were insured for "thousands of dollars." Capital disputes this interpretation of the conversation and, in any event, argues plaintiff's reliance on this statement is unreasonable in view of a signed limitation of damages clause which provided for payment upon loss of sixty cents per pound per article stored. The elements of a common law claim of fraudulent inducement to contract are (a) a representation or, where there is a duty to disclose, concealment of a fact; (b) which is material to the transaction at hand; (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (d) with the intent of misleading another into relying upon it; (e) justifiable reliance upon the representation or concealment; and 1 Plaintiff has not argued error relating to the other claims set forth in the complaint; therefore, those issues have been waived on appeal. See App.R. 12; C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St.2d 298. - 4 - (f) a resulting injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, paragraph two of the syllabus; Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167. Allegations of fraud must be proven by clear and convincing evidence. Cross v. Ledford (1954), 161 Ohio St. 469, paragraph two of the syllabus. At her deposition, plaintiff testified she told the movers about her concerns for the safety of her goods and stated they replied: He [one of the movers] said, oh, you ain't got to worry about that. Capital Van Storage is, has -- your stuff is highly insured. *** He told me Capital has hundreds of thousands, millions of dollars, something, something in that, he says, and he said, I am quite sure you ain't got to worry ***." The context of this conversation shows the driver was referring to the amount of insurance carried by Capital, not the amount of money for which plaintiff's possessions were insured. Read in this light, the statement is not a false representation made with intent to mislead plaintiff. Even if this substance of this conversation were subject to different interpretations, it is undisputed plaintiff separately signed a form limiting Capital's liability for loss to sixty cents per pound per article pursuant to the valuation provision of the bill of lading. The bill of lading contained a separate section headed with the word "VALUATION." That section states: Customer (Shipper) is required to declare in writing the released value of the property. - 5 - The agreed or declared value of the property is hereby specifically stated by the customer (shipper) and confirmed by their signature thereon to be NOT exceeding 30 (60) cents per pound per article unless specifically excepted. The Customer (Shipper) hereby declares valuations in excess of the above limits on the following articles ***." Directly below this paragraph are the words "60 c PER POUND PER ARTICLE. /s/ Sandra Simpson." If a person can read and is not prevented from reading what she signs, she alone is responsible for her failure to read what she signs. Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 14; Dice v. Akron, Canton & Youngstown RR. Co. (1951), 155 Ohio St. 185, 191, reversed on other grounds (1952), 342 U.S. 359. Plaintiff admitted her haste to finish loading her possessions caused her to sign the valuation provision without reading it. Additionally, there is no evidence suggesting the driver engaged in overreaching or undue persuasion in order to obtain plaintiff's signature. Therefore, we find as a matter of law the trial court properly granted summary judgment because plaintiff failed to establish the requisite elements of a claim for fraud. Plaintiff next argues the trial court erred by granting summary judgment on her claim alleging the unconscionability of the limitation of liability clause. While conceding the continued viability of such limiting clauses under Ohio law, plaintiff nonetheless maintains her status as an inexperienced shipper compels the conclusion that this particular limiting clause is unconscionable. - 6 - The contractual limitation of a warehouseman's liability is set forth in R.C. 1307.09(B): "(B) Damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage, and setting forth a specific liability per article or item, or value per unit of weight, beyond which the warehouseman shall not be liable; provided, that such liability may on written request of the bailor at the time of signing such storage agreement or within a reasonable time after receipt of the warehouse receipt be increased on part or all of the goods thereunder, in which event increased rates may be charged based on the increased valuation ***." The concept of unconscionability contains two components: substantive and procedural. Collins v. Click Camera & Video, Inc. (1993), 86 Ohio App.3d 826, 834. "Substantive unconscionability involves those factors which relate to the contract terms themselves and whether they are commercially reasonable. *** Procedural unconscionability involves those factors bearing on the relative bargaining position of the contracting parties, e.g., `age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question.'" Id. (citation omitted). Unconscionability is a question of law for the court. R.C. 1302.15(A); Ins. Co. of North America v. Automatic Sprinkler Corp. (1981), 67 Ohio St.2d 91, 98. Plaintiff raises the issue of procedural unconscionability in the formation of the contract to store her possessions. She argues - 7 - she is unsophisticated and unfamiliar with legal or business practices and, because of her haste to finish loading her possessions, did not take the time to read and understand the limitation of damages clause. The trial court did not err by granting summary judgment on the unconscionability claim. Despite plaintiff's lack of experience with storage contracts, nothing about the limitation of liability clause itself was unreasonable. Quite the contrary, the limitation of damages clause limited liability to an amount proportioned to the total weight of the items stored, as provided for by R.C. 1307.09(B). Moreover, plaintiff specifically signed a separate clause of the contract attesting to the agreed valuation of her property. As signatory, it was her responsibility to take the time to read and understand what she signed. Her failure to do so does not render the limitation of liability clause unconscionable. Finally, plaintiff argues the trial court erred by granting summary judgment on her claim that Capital violated the consumer sales practices act by engaging in deceptive and unfair acts. She maintains representations by Capital's workers "created in her and induced a false sense of security" as to the extent her possessions would be covered by insurance. The trial court rejected this claim finding plaintiff "has not come forward in her brief and eviden- tiary submissions with any evidence of conduct which she contends constitutes a deceptive or unfair act. The plaintiff simply - 8 - alleges generally that there is a dispute of fact as to that point." R.C. 1345.03(B) defines unconscionable acts or practices: (B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consider- ation: (1) Whether the supplier has knowingly taken advantage of the inability of the consumer reasonably to protect his interests because of his physical or mental infirmities, ignorance, illiteracy, or inability understand the language of an agreement; *** (6) Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to his detriment; The alleged unfair or deceptive practices are (1) the representation plaintiff's possessions were insured for "hundreds of thousands of dollars," and (2) the unconscionability of the limitation of damages clause. We find no error with the summary judgment rendered on this claim. As to the first claim, we adhere to our previously stated view the "hundreds of thousands of dollars" statement simply referred to the amount of insurance carried by Capital. In any event, we find for purposes of R.C. 1345.03(B)(6), plaintiff failed to present any evidence to show the driver knowingly made a misleading statement of opinion as to the extent of insurance coverage on her possessions. R.C.1345.01(E) defines "knowledge" as "*** actual awareness, but such actual awareness may be inferred where objective manifestations indicate that the individual involved - 9 - acted with such awareness." Plaintiff did not support her opposition to the motion for summary judgment with any evidentiary material demonstrating the driver's state of mind. Absent this showing, the trial court did not err by finding no issue of material fact existed. As to the claim of unconscionability premised on R.C. 1345.03(B)(1), we also agree plaintiff has failed to present any evidence sufficient to demonstrate the driver knowingly took advantage of plaintiff's inability to understand the language of the agreement. In fact, when asked at her deposition why she had not read the contract, plaintiff stated, "Because, like said, at that time, I was upset, [the apartment complex] was asking me to, you know, to hurry up and get out, it was like 6:00 in the evening and they were tired, I was tired ***." This evidence does not create an issue of material fact as to the driver's intent to take advantage of plaintiff's inability to read the contract. Accordingly, we find the trial court did not err by granting summary judgment on the complaint. The assignment of error is overruled. Judgment affirmed. - 10 - 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 Court of Common Pleas 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, J. NAHRA, J., CONCUR CHIEF JUSTICE JOHN T. PATTON 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 journalization, .