COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68969 KRISTINE C. KOESTER : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION PETE BAUR, ET AL. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 22, 1996 CHARACTER OF PROCEEDING: Civil appeal from Berea Municipal Court No. 95-CVI-251 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: KRISTINE C. KOESTER, Pro Se 503 Crossbrook Drive Berea, Ohio 44017 For Defendant-Appellant: JEFFREY W. LARGENT Largent & Comstock Co., L.P.A. Plaza South Three Building Suite 101 7271 Engle Road Middleburg Heights, Ohio 44130 - 2 - O'DONNELL, J.: Pete Baur Pontiac, Inc. appeals a $1045 judgment entered by the Berea Municipal Court in favor of Kristine Koester in her action to recover her deposit on the purchase of a new automobile. The App.R. 9(C) statement of the proceedings in this case reveals the following facts: On November 25, 1994, Koester met with representatives of Pete Baur Pontiac, ordered a standard transmission, aqua-colored 1995 Pontiac Grand Am, and paid $45.20 at that time. On December 1, 1994 when she signed the purchase order, she paid an additional $1,000 deposit to Pete Baur and specified that she ordered the car for January 12, 1995. Because Pete Baur had not delivered the car by the requested date, Koester sent a January 26, 1995 letter to Pete Baur, advising she wanted the car no later than 5:00 p.m. on January 30, 1995, or she would consider the purchase order null and void. On February 1, 1995 she confirmed this cancellation with another letter, and the record before us does not show any response made by Pete Baur to any of her requests. Thereafter Koester purchased a different Pontiac Grand Am with an automatic transmission from a different Pontiac dealer. When Pete Baur failed to refund her deposit in accordance with her contract cancellation, she filed suit in the Berea - 3 - Municipal Court on February 4, 1995 seeking the recovery of the $1,045 deposit. Subsequently, on February 6, 1995, W. Bruce Sykes, the General Manager at Pete Baur Pontiac notified Koester that her vehicle was ready for immediate delivery at the dealership. She did not accept the vehicle and the record is silent as to the present whereabouts of that vehicle. On March 22, 1995, the trial court conducted a hearing on the matter of Koester's requested refund and, in accordance with Ohio Adm. Code 109:4-3-09, entered judgment in her favor in the sum of $1,045. Pete Baur now appeals and assigns three errors for our review, two of which involve a common basis for our review, and therefore, will be considered together. They state: I. THE TRIAL COURT ERRED IN HOLDING THAT RULE NO. 109:4-3-09 OF THE OHIO ADMINISTRATIVE CODE, AS ADOPTED BY THE OHIO ATTORNEY GENERAL, APPLIED AS THE LAW RELEVANT TO THIS CASE. II. THE TRIAL COURT ERRED IN ITS DECISION THAT A MOTOR VEHICLE ORDERED BY A CUSTOMER ON DECEMBER 1, 1994, TO BE MANUFACTURED TO HER SPECIFICATIONS, WAS NOT TIMELY DELIVERED WHEN THE CUSTOMER WAS NOTIFIED IT WAS READY FOR PICKUP AT THE DEALERSHIP ON FEBRUARY 6, 1995, AND THAT, ACCORDINGLY, THE CUSTOMER WAS ENTITLED TO A REFUND OF HER DEPOSIT PURSUANT TO RULE 109:4-3-09 O.A.C. Pete Baur contends that Ohio Adm. Code 109:4-3-09 should not apply to this transaction because the vehicle ordered by Koester - 4 - did not constitute a "good" as defined by R.C. 1302.01 or Ohio Adm. Code 109:4-3-01. Pete Baur asserts the vehicle is "future good" as defined in R.C. 1302.01 because it was not existing and identified at the time of the order. Consequently, Pete Baur contends that because the Ohio Adm. Code does not include future goods among its provisions, the 8-week delivery time does not apply to this vehicle and the trial court should have applied the more general reasonable time for delivery standard under the Uniform Commercial Code. Koester argues that the trial court properly applied the Ohio Adm. Code because its provisions should be construed for the protection of consumers in sales transactions. At issue here are codified and administrative definitions of goods which we must consider in resolving this case. R.C. 1302.01(A)(8) specifically defines goods: "Goods" means all things (including specially manufactured goods) which are moveable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities, and things in action. ***. Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell. Ohio Adm. Code 109:4-3-01 defines goods in this manner: (1) "Goods" means all things (including specially manufactured goods) which are movable at time of identification to the contract for sale other than money in which the price is to be paid, securities ***, and things in action. - 5 - There is no separate statement in the Administrative Code regarding future goods. This distinction between the definitions is relevant to the case before us because Ohio Adm. Code 109:4-3-09 uses the term goods in identifying a deceptive act or practice involving consumer transactions: (A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier: *** (2) To accept money from a consumer for goods or services ordered by mail, telephone, or otherwise and then permit eight weeks to elapse without: (a) Making shipment or delivery of the goods or services ordered; (b) Making a full refund; (c) Advising the consumer of the duration of an extended delay and offering to send him a refund within two weeks if he so requests; or (d) Furnishing similar goods or services of equal or greater value as a good faith substitute. *** The issue then, presented for our consideration is whether the Revised Code or the Administrative Code applies to the facts presented in this case. To resolve this matter, we are confined to the record which we examine to determine whether the vehicle in question is a good or a future good. In examining the record we note that Koester ordered her car on November 25, 1994 and paid $45.20 to Pete Baur at that time. - 6 - Further, she signed a purchase order and paid an additional $1000 to Pete Baur on December 1, 1994, the dealer special-ordered the car on December 3, 1994, and attempted delivery on February 6, 1995. However, the record before us fails to demonstrate an essential fact in the case, that is, whether or not the vehicle was existing and identifiable at the time Koester ordered it. There is simply no evidence in the record from which to determine the origin of the vehicle or whether it had been manufactured and assembled after the order date or whether it had been obtained from outstanding available inventory or on dealer trade from another dealership. We are further mindful of App. R. 9(B) which requires, in pertinent part: If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, the appellant shall include in the record a transcript of all evidence relevant to the findings or conclusion. We conclude from this mandate contained in App. R. 9 that Pete Baur, as appellant should have included in the record evidence as to the origin of the vehicle it purported to deliver on February 6, 1995 to support its contention that the aqua Pontiac Grand Am with standard transmission was not existing or identifiable on December 1, 1994, but had been manufactured, assembled and delivered pursuant to its purchase order after that date. The record here as filed by Pete Baur, contains no basis for us to - 7 - find in appellant's favor. Accordingly, these assignments of error are overruled. The third assignment of error states: THE TRIAL COURT ERRED IN FAILING TO APPLY THE UNIFORM COMMERCIAL CODE, SALES, SECTIONS CONTAINED IN CHAPTER 1302 O.R.C., TO THE FACTS OF THE INSTANT CASE IN REACHING A DECISION, WHICH SHOULD HAVE BEEN JUDGMENT FOR DEFENDANT. In reviewing this assignment of error, we note that App. R. 16(A) requires: The appellant shall include in its brief, under the headings and in the order indicated, all of the following: *** (7) An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary. Furthermore, App. R. 12(A)(2) states: The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App. R. 16(A). Pete Baur failed to separately argue its third assignment of error in its brief. Therefore, in accordance with App. R. 12(A), we disregard it. Judgment affirmed. - 8 - It is ordered that appellee(s) recover of appellant(s) 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 Berea 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. SPELLACY, C.J., TIMOTHY E. McMONAGLE, J., CONCUR JUDGE TERRENCE O'DONNELL 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- .