COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68847 GEORGE SINTSIRMAS : : ACCELERATED DOCKET : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : PATRICIA TRISCARO : OPINION : : PER CURIAM DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 5, 1995 CHARACTER OF PROCEEDING: Civil proceeding from Lyndhurst Municipal Court, Case No. 94-CVI-1831. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: George Sintsirmas, Esq. pro se 6212 Coldstream Highland Heights, Ohio 44143 For Defendant-appellee: Patricia Triscaro pro se 6741 Thornapple Mayfield Village, Ohio 44143 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). This case, which was submitted on the briefs of the parties without oral argument, involves the private party sale of a used 1990 Mercedes 300E automobile. Plaintiff-appellant-buyer George 1 Sintsirmas ("Sintsirmas") appeals from the municipal court's decision adopting the referee's report and finding for the defendant-appellee-seller Patricia Triscaro ("Triscaro"). For the reasons adduced below, we affirm. A review of the record on appeal indicates that Sintsirmas filed a small claims complaint on December 15, 1994, alleging the following: (1) fraudulent misrepresentation of the car's condition; (2) breach of express and implied warranties; and (3) damages in excess of $2,000.00 plus interest. This complaint was amended on December 19, 1994, with minor corrections to the original form. 1 Mr. Sintsirmas is an attorney. - 3 - On January 20, 1995, a hearing was conducted before the 2 referee. Both parties attended the hearing. On January 27, 1995, the referee issued his report as follows in pertinent part: FACT: 1. Plaintiff purchased used auto from defendant with over 45,000 miles. 2. Plaintiff road tested the auto twice prior to the purchase. 3. Defendant had no knowledge of latent defects. LAW: Where a party purchases a used auto, the doctrine of coveat empter (sic.) applies absent proof by clear and convincing evidence of prior known latent defects. RECOMMENDATION: Judgment for defendant at plaintiff's costs. Sintsirmas filed his objections to the referee's report on February 8, 1995, attaching unauthenticated copies of a December 14, 1994, and January 18, 1995, service estimate as the sole exhibits. These two repair estimates are attached to appellant's brief at Exhibit E. Triscaro filed her response to Sintsirmas's objections on February 21, 1995. On March 10, 1995, the trial court adopted the referee's report and granted judgment in favor of Triscaro. Sintsirmas filed his timely notice of appeal from this judgment on March 31, 1995. 2 A transcript of the hearing proceedings is not in the record as it was not recorded. - 4 - On April 14, 1995, the trial court judge (Judge Grogan) filed with this appellate court a Statement of the Evidence pursuant to 3 App.R. 9(E), which provides the following : THE DEFENDANT THROUGH A NEWSPAPER ADVERTISEMENT OFFERED HER MERCEDES 300E FOR SALE TOWARD THE END OF OCTOBER 1994. THE PLAINTIFF CONTACTED THE DEFENDANT AND ARRANGED FOR A TEST DRIVE OF THE VEHICLE ON OR ABOUT OCTOBER 24, 1994. THE VEHICLE HAD 47,000 MILES ON IT AND APPEARED TO BE IN GOOD CONDITION. THE PLAINTIFF INQUIRED WHETHER ALL THE REGULAR SERVICE RECOMMENDED BY THE MANUFACTURER HAD BEEN DONE ON THIS VEHICLE, AND THE LOCATION WHERE THOSE SERVICES WERE PERFORMED. THE DEFENDANT INDICATED THAT SERVICE OF THE VEHICLE WAS PERFORMED AS RECOMMENDED BY THE MANUFACTURER EVERY 15,000 MILES. THE VEHICLE WAS SERVICED BY DOWD MERCEDES, AND THE LAST SERVICE WAS PERFORMED WHEN THE VEHICLE HAD 45,000 MILES ON IT. UPON TEST DRIVING THE VEHICLE THE PLAINTIFF NOTICED THAT THERE WAS A DELAY IN SHIFTING, WITH A SMALL BUT NOTICEABLE "KICK" WHEN THE VEHICLE SHIFTED FROM FIRST TO SECOND GEAR. ON OR ABOUT NOVEMBER 3, 1994, THE PLAINTIFF AND HIS WIFE ONCE AGAIN ROAD TESTED THE AFOREMENTIONED VEHICLE. ONCE AGAIN AN INQUIRY WAS MADE TO THE DEFENDANT REGARDING THE TRANSMISSION. DEFENDANT ONCE AGAIN REPEATED THAT SHE HAD NO PROBLEM WITH THE TRANSMISSION. THE PLAINTIFF AT THIS POINT TOLD THE DEFENDANT THAT HE WANTED TO HAVE THE VEHICLE INSPECTED, AND WANTED ACCESS TO THE SERVICE RECORDS AT DOWD. 3 Attached to this statement of the evidence were the two repair estimates previously attached to appellant's objections to the referee's report. - 5 - ON OR ABOUT NOVEMBER 6, 1994, THE DEFENDANT CALLED THE PLAINTIFF AND INDICATED THAT THE NEW VEHICLE THAT SHE HAD BOUGHT WAS IN, AND SHE HAD TO CLOSE THIS DEAL (i.e. THE SALE OF THE MERCEDES) BY NOVEMBER 7TH, BECAUSE THE DEALER WOULD NOT HOLD HER NEW VEHICLE AFTER THAT DATE. THE PLAINTIFF AGREED TO ACCOMMODATE THE DEFENDANT'S SCHEDULE, BUT INFORMED DEFENDANT THAT HE WAS RELYING ON HER REPRESENTATIONS REGARDING THE SERVICE SCHEDULE OF THE VEHICLE (i.e. THAT THE VEHICLE HAD BEEN INSPECTED WHEN IT HAD 45,000 MILES ON IT.) ON NOVEMBER 9TH THE PLAINTIFF MADE AN APPOINTMENT TO HAVE DOWD MERCEDES INSPECT THE VEHICLE. UPON INSPECTION OF THE RECORDS IT WAS DISCOVERED THAT THIS VEHICLE HAD BEEN SERVICED AT 45,000 MILES AS IT HAD BEEN REPRESENTED BY THE DEFENDANT, BUT THAT THE RECORDS DID NOT INDICATE ANY MENTION TO MERCEDES BY THE DEFENDANT OF A TRANSMISSION NOISE. INSPECTION OF THE VEHICLE INDICATED A PROBLEM WITH ITS TRANSMISSION AND DIFFERENTIAL. MERCEDES AGREED TO PAY PART OF THE REPAIR BILL, BUT THE PLAINTIFF'S PORTION OF THE BILL EXCEEDED $2,000. SEE APPELLANT'S EXHIBIT "D". A SERVICE REPRESENTATIVE FROM DOWD WHO TESTIFIED AT THE HEARING OF THIS CASE INDICATED THAT THERE WAS A TRANSMISSION PROBLEM. THERE WAS NO RECORD THAT THE DEFENDANT EVER BROUGHT THAT PROBLEM TO THEIR ATTENTION. DATED: 4-14-95 (ss) Robert J. Grogan Appellant presents three assignments of error on appeal. These assignments will be discussed jointly. I THE LOWER COURT ERRED WHEN IT IGNORED THE APPLICABLE SECTIONS OF O.R.C. 1302.01-.98 AND FOUND IN FAVOR OF THE DEFENDANT IN THIS CASE. II - 6 - THE LOWER COURT ERRED WHEN IT MISAPPLIED THE DOCTRINE OF CAVEAT EMPTOR AND PRECLUDED RECOVERY BY THE PLAINTIFF FROM THE DEFENDANT. III THE LOWER COURT ERRED WHEN IT FAILED TO FIND OR EVEN DISCUSS MISREPRESENTATION BY THE DEFENDANT IN THIS CASE. In analyzing these assignments, we are guided by the standard of appellate review which mandates that a judgment of a trial court which is supported by competent and credible evidence shall not be reversed as being against the weight of the evidence. Myers v. Garson (1993), 67 Ohio St.3d 610; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Also, The weight given the evidence and the credibility of witnesses, generally, are issues to be resolved by the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81, see also State v. Dehass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Jackson v. Jackson (December 16, 1993), Cuyahoga App. No. 64284 and 64873, unreported. Also, *** [I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. *** If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment. Seasons Coal Co., supra, at 80, fn. 2. - 7 - In the present case, the trial court's judgment is documented solely by the App.R. 9(E) Statement of Evidence and the two repair estimates attached to it. This is the only record of the evidence 4 which was before the trial court. The record on appeal does not demonstrate the claimed errors. In fact, the record, which is scanty, supports the finding that the defendant made no fraudulent misrepresentations concerning the condition of the car's transmission because she was unaware of any latent defect in the transmission during the term of her ownership. The defective transmission was not diagnosed until approximately 2,000 miles after the 45,000 mile check-up which was found to have been complied with by the defendant. Also, based on the record presented, there was competent and credible evidence that defendant made no statements which could be construed as creating an implied or express warranty as to the transmission's condition. Assignments overruled. Judgment affirmed. 4 Exhibit D attached to appellant's brief, which are copies of two repair orders on the car from early 1994 when the mileage was approximately 41,000 miles, are not part of the record on appeal since there is no indication that they were before the trial court. These repair orders do not mention or describe any transmission related problems or any repairs effected to the transmission. - 8 - It is ordered that appellee recover of appellant her 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 Lyndhurst 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. JAMES D. SWEENEY, P.J. SARA J. HARPER, J. JOHN V. CORRIGAN*, J. (*)John V. Corrigan, J., Retired, of the Eighth District Court of Appeals, 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, .