COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70644 RANDOLPH J. MURPHY JR. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION GANLEY PONTIAC, INC. : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: MARCH 13, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-286920 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: LEWIS A. ZIPKIN (#0030688) MARY E.R. BARTHOLIC (#0063670) ZIPKIN, FINK & WHITING Two Commerce Park Square - #106 23200 Chagrin Boulevard Beachwood, OH 44122 For Defendant-Appellee: RUSSELL W. HARRIS (#0020761) 13215 Detroit Avenue Lakewood, OH 44107 - 2 - SPELLACY, J.: Plaintiff-appellant, Randolph J. Murphy, Jr., ("appellant") appeals from a judgment of the trial court awarding him $2,600.00 on his claim for violation of the Consumer Sales Practices Act, R.C. Chapter 1345, against defendant-appellee, Ganley Pontiac, Inc., ("appellee"), but denying his claim for treble damages and attorney fees. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, BY NOT FINDING APPELLEE IN VIOLATION OF O.R.C. 1345.02, WHEN IT FOUND APPELLEE IN VIOLATION OF OHIO ADMINISTRATIVE CODE 109:4-3. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT DENIED AN AWARD OF ATTORNEY'S FEES. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT CONCLUDED THAT AN AWARD OF TREBLE DAMAGES WAS WITHIN ITS DISCRETION AND WAS, THEREFORE, DENIED. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On March 27, 1995, appellant filed a complaint with the Cuyahoga County Court of Common Pleas seeking consumer relief pursuant to O.R.C. Chapter 1345. In particular, appellant's complaint in Count I alleged that appellee knowingly committed unfair or deceptive and/or unconscionable consumer sales practices in violation of R.C. 1345.02 and 1345.03. In Count II of his complaint, appellant made a fraud claim against appellee, asserting - 3 - that the overall transaction, as well as several specific incidents, constituted fraudulent conduct. On November 14, 1995, the trial court ordered the case to arbitration. Accordingly, an arbitration hearing was conducted on January 26, 1996, and an award of $2,600.00 was rendered in favor of appellant. On February 20, 1996, appellant appealed the decision of the arbitrator. On March 29, 1996, appellant's case proceeded to trial. On April 9, 1996, the trial court held the following: (1) appellant failed to prove by a preponderance of the evidence that appellee violated R.C. 1345.02; (2) appellant failed to prove by a preponderance of the evidence that appellee violated R.C. 1345.03; (3) appellee was in violation of O.A.C. 109:4-3-07 for failure to meet the requirements specified in that section; and (4) no award of treble damages, punitive damages, or attorney's fees will be awarded to appellant. The trial court did, however, render judgment in favor of appellant in the amount of $2,600.00. (Judgment and Order, April 9, 1996). II. The appellant's failure to provide this court with a complete transcript of the trial limits our ability to fully recount the facts of this case. However, the following facts can be gleaned from the record. In December 1994, appellant went to appellee auto dealership in response to an advertisement offering a minimum trade-in credit - 4 - of $2,000.00 for any vehicle which could be pushed, pulled, or towed into the dealership. Appellant wanted to trade-in his automobile, which had a blown engine and on which he had an outstanding loan for over $3,000.00 with Huntington Bank. Appellant put a $600.00 deposit down on a 1991 Honda Accord and was given a standard receipt from Appellee. The deal for the Honda Accord, however, fell through, and appellant purchased a 1986 Pontiac Sunbird, with the $600.00 being applied to the price of the car. After experiencing problems with the car, appellant returned the Sunbird and selected a 1989 Pontiac Grand Am. Once again, the $600.00 was applied to the Grand Am. Appellant signed a written contract for the sale of the Grand Am that stated the terms of the sale. This contract specifically excluded any credit for a vehicle that was traded-in to appellee dealership by appellant. Appellant retained ownership of his original vehicle, a Chevy Baretta. The Baretta, however, was towed from his home. Because appellant could not afford two car payments, he defaulted on his loan with Huntington Bank for the Baretta. Subsequently, Huntington Bank repossessed the Baretta, and has sued appellant for $2,530.48, plus interest. III. In his first assignment of error, appellant contends that the trial court erred by not finding appellee in violation of R.C. 1345.02, when it found appellee in violation of O.A.C. 109:4-3-07. - 5 - However, appellant has failed to provide this court with a transcript of the trial court proceedings. Because we lack a sufficient record, we cannot assess appellant's claim on the merits. The appellant bears the burden of providing a record which demonstrates the claimed error. App.R. 9(B) and 10(A); Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 19. " * * * It follows that where a transcript of any proceeding is necessary for disposition of any question on appeal, the appellant bears the burden of taking the steps required to have the transcript prepared for inclusion in the record. * * *" Id. " * * * When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm." Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; See also Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59, 62. Accordingly, appellant's first assignment of error is overruled. IV. In his second assignment of error, appellant contends that the trial court erred when it denied his claim for attorney fees. In particular, appellant contends that a consumer is entitled to - 6 - attorney fees if a supplier knowingly commits an act or practice that constitutes a violation of Chapter 1345 of the Revised Code. R.C. 1345.09(F)(2) provides as follows: (F) The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed, if * * * * * * (2) The supplier has knowingly committed an act or practice that violates this chapter. In the present case, the trial court, in denying appellant's claim for attorney fees, set forth in its opinion and order that the determination of whether to award appellant's claim for attorney fees was within its sound discretion. Thus, absent an abuse of discretion, the trial court's order will not be disturbed. An abuse of discretion connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. As set forth previously, R.C. 1345.05(F)(2) states that "[t]he court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed." (emphasis added). It has been previously stated that, "[i]n statutory construction, the word "may" shall be construed as permissive and the word "shall" shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage." Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, paragraph - 7 - one of the syllabus; See also Liquor Dept. v. Sons of Italy (1992), 65 Ohio St.3d 532, 534. The lower courts of this state have long relied on this clear rule of construction. Id. There is not even a remote indication, let alone "clear and unequivocal legislative intent," that the General Assembly considers an award of attorney fees to be mandatory. Quite the contrary, the General Assembly chose permissive language regarding the award of attorney fees to a consumer prevailing in an action for violation of R.C. Chapter 1345. Further, it is not the prerogative of this court to second-guess the General Assembly's legislative policy choices. Thus, the trial court did not abuse its discretion in failing to award appellant attorney fees in violation of R.C. 1345.09(F)(2). Accordingly, appellant's second assignment of error is without merit. V. In his third assignment of error, appellant contends that the trial court erred when it concluded that an award of treble damages was within its discretion and was, therefore, denied. R.C. 1345.09(B) conditions the availability of treble damages upon a violation of R.C. 1345.02 or 1345.03 and a showing that the violation was either (1) an act or practice declared to be deceptive or unconscionable by a rule adopted by the Attorney General pursuant to R.C. 1345.05(B)(2) prior to the commission of the violation in question, or (2) an act or practice determined to - 8 - violate R.C. 1345.02 or 1345.03 by a previous Ohio court decision. Hahn et al. v. John Doe, Doing Business as 84 Lumber & Home Center et al. (March 23, 1995), Franklin App. No. 94APE07-1024, unreported. Based upon the foregoing, R.C. 1345.09(B) provides: (B) * * * 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, * * * . In the present case, appellant argues that appellee's violation of O.A.C. 109:4-3-07 was an act or practice declared to be deceptive or unconscionable by the Attorney General pursuant to R.C. 1345.05(B)(2) and therefore was a violation of R.C. 1345.02. However, as stated supra, appellant has failed to provide this court with an adequate record to determine whether the trial court erred in finding that appellant failed to prove by a preponderance of the evidence that appellee violated R.C. 1345.02. Thus, as with appellant's first assignment of error, we have no choice but to presume the validity of the lower court's proceedings, and affirm. Edwards Laboratories, supra. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. - 9 - 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 Common Pleas 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, C.J. and ANN DYKE, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .