COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78300 DAVID MILLER : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION DAIMLERCHRYSLER MOTORS CORP. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : MAY 31, 2001 CHARACTER OF PROCEEDING : Civil appeal from Cuyahoga : County Common Pleas Court : Case No. CV-387,627 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: RONNA LUCAS DAVID LEVIN Attorneys at Law Krohn & Moss, Ltd. 120 West Madison Street, 10th Floor Chicago, IL 60602 For defendant-appellee: JOHN J. REAGAN BRIAN D. SULLIVAN Attorneys at Law Reminger & Reminger Co., L.P.A. 113 St. Clair Building, Suite 700 Cleveland, OH 44114-1273 -2- KENNETH A. ROCCO, P.J.: This case is before the court on appeal from a common pleas court decision to grant a directed verdict at the close of plain- tiff's case in favor of defendant-appellee, DaimlerChrysler Motors Corporation ( DaimlerChrysler ), on plaintiff-appellant David Miller's claims for breach of express and implied warranties and violation of Ohio's Lemon Law. Miller argues: I. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT IN FAVOR OF THE DEFEN- DANT ON PLAINTIFF'S LEMON LAW CLAIM. II. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT IN FAVOR OF THE DEFEN- DANT ON PLAINTIFF'S BREACH OF EXPRESS WARRANTY CLAIM. III. THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT IN FAVOR OF THE DEFEN- DANT ON PLAINTIFF'S BREACH OF IMPLIED WARRANTY CLAIM. We find no error in the trial court's ruling and affirm its decision. FACTS AND PROCEDURE The complaint in this case was filed July 15, 1999. It alleged that Miller purchased a 1999 Jeep Grand Cherokee manufactured by DaimlerChrysler on January 25, 1999 for approxi- mately $36,750.00. Miller claimed the Jeep did not conform to express warranties supplied by DaimlerChrysler, including a defective steering system which made grinding noises when the wheel was turned. He averred that he gave DaimlerChrysler several oppor- -3- tunities to repair or replace the Jeep, but it was unable or failed to do so. Miller asserted that he revoked his acceptance of the vehicle, but DaimlerChrysler refused his revocation. Count I of the complaint claimed a breach of the manufac- turer's express written warranty, in violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2310(d)(1). Count II claimed breach of the implied warranty of merchantability under the Magnuson Moss Warranty Act, 15 U.S.C. Section 2308. Count III claimed violation of Ohio's Lemon Law, R.C. 1345.72. On each count, Miller demanded revocation of his acceptance of the con- tract, return of the purchase price, incidental and consequential damages, collateral expenses (including finance charges and insurance fees), loss of use of the vehicle, lost time from work and out-of-pocket expenses attendant to his efforts to obtain the repair, and attorney's fees. DaimlerChrysler's answer denied these claims and asserted, among other things, that the alleged non-conformities did not sub- stantially impair the use, value or safety of the vehicle. The case proceeded to a jury trial on June 15, 2000. Miller testified about the various problems he encountered with the vehicle. Miller said that the main problem with the Jeep was an intermittent grinding or groaning noise and vibrations in the steering wheel when he turned the vehicle. He also said he had had problems with the brakes and rotors grinding and thumping, the power windows did not work, the remote entry malfunctioned, and there was an air conditioning problem. -4- Miller said he took the vehicle to the dealer for the steering problem on February 19, 1999, less than one month after he pur- chased the vehicle. He mentioned that he was still experiencing the problem the next time he took the car in for an oil change on April 8, but nothing was done at that time. He returned for service on the steering problem as well as a brake problem on April 13. Again, he took the Jeep in for service on the steering on May 4 and June 29 and returned for additional service on the steering as well as problems with the remote entry and the air conditioning on July 12, 1999. On October 26, 1999, he went back for service on the steering and on the remote entry system. On January 19, 2000, Miller took his car to the dealership for maintenance. He said he told the service person that he still had the steering problems, but it was not listed on the repair order. The next time he went in, on February 14, 2000, he wrote the steering problem onto the repair order and the service personnel scratched it off. He said he continued to have problems with the steering. In addition to Mr. Miller's own testimony, Miller also pre- sented the testimony of a friend, Catherine Fasko, who frequently rode in the vehicle, and cross-examined a technical advisor for DaimlerChrysler. The technical advisor testified about repairs that were performed on the Jeep pursuant to technical service bulletins which were intended to alleviate grinding and groaning noises in the steering mechanism. -5- At the conclusion of the plaintiff's case, DaimlerChrysler moved for a directed verdict on each of Miller's claims, arguing that there was no evidence that the vibrations and noise were caused by a defective condition and there was no evidence of Miller's damages on his warranty claim. Miller also moved for a directed verdict on his Lemon Law claim. After hearing the parties' arguments, the court made the following statements on the record: THE COURT: *** FIRST THE FACT THAT THERE WERE NUMEROUS REPAIRS UNDER THE WARRANTY, WHETHER EXPRESS OR IMPLIED, FOR OTHER AND DIFFERENT CONDITIONS HAS NO RELATION TO THIS CASE. THIS CASE RELATES TO NOISE, VIBRATION WITHIN THE STEERING COLUMN AND A QUESTION OF THE NECESSITY OF EXPERT TESTIMONY. MR. MILLER AND HIS LADY TELL US THAT THERE IS NOISE, THERE IS VIBRATION. THERE IS NO EVIDENCE THAT THE DAIMLER CHRYSLER PEOPLE WERE UNWILLING TO ATTEMPT TO CORRECT THAT PROBLEM. THE PROBLEM IN THIS CASE IS THAT THE PROBLEM WAS NEVER DIAGNOSED. THE ONLY REASON WE KNOW THERE'S SOMETHING WRONG IS BECAUSE THE MILLERS TELL US SO. THE CHRYSLER PEOPLE NEVER WERE ABLE TO IDENTIFY THE PROBLEM, ALTHOUGH THEY TRIED ON MANY, MANY OCCASIONS. I DO HAVE AN INDIANA CASE THAT MR. LEVIN PROVIDED ME, BUT THAT CASE IS NOT AT ALL ON POINT WITH THIS CASE. THAT CASE RELATES TO DEFECTIVE BRAKES. THE PROBLEM IS IDENTIFIED. THE DEALER IN THAT CASE AGREED THAT THE BRAKES WERE DEFECTIVE. THEY TRIED TO FIX THEM. THEY FAILED. THEY FAILED TO FIX THEM AND THE BRAKES FAILED. *** EXPERT TESTIMONY WASN'T NEEDED BECAUSE THE AVERAGE PERSON OR THE OWNER OF THE CAR CAN TELL US THAT THE BRAKES AREN'T WORKING RIGHT AND, AGAIN, THE AUTOMOBILE DEALERSHIP ACKNOWLEDGED THAT THERE WAS A PROBLEM WITH THE BRAKES. *** YOU HAVE GOT TO HAVE EXPERT TESTIMONY IN THIS CASE. SOMEBODY HAS GOT TO TELL US THAT THERE IS A CAUSAL RELATIONSHIP, A CAUSAL RELATIONSHIP BETWEEN THE DEFECT AND THE NOISE OR VIBRATION. WE HAVE TO GO TO THE DEGREE OF -6- CERTAINTY. WE ALL KNOW THAT. THAT'S THE LAW. IT IS NOT POSSIBLY. IT IS PROBABLY. DAMAGE QUESTION. YOU KNOW ONE DAY AFTER THE CAR WAS PURCHASED IT WAS WORTH $37,000 AND ON ANOTHER DAY $21,000 AND I UNDERSTAND THE MATHEMATICAL CERTAINTY, BUT THAT RANGE, SO TO SPEAK, BETWEEN $37,000 AND $21,000 JUST COMING OUT OF THE MOUTH OF THE PLAINTIFF WITHOUT ANY BACKUP, IF YOU WILL, ANYTHING TO SUBSTANTIATE THOSE FIGURES. IT PAINS ME, BUT I GRANT THE DEFENDANT'S MOTION FOR DIRECTED VERDICT. On June 19, 2000, the court entered final judgment as follows: The Court grants D[efendant's] motion for Directed Verdict made at conclusion of P[lain- tiff's] case. Miller timely appealed this ruling. LAW AND ANALYSIS We construe the trial court's extensive comments on the record at trial as its statement of the basis for its decision as required by Civ.R. 50(E). Although the rule requires the court to make this statement in writing, [s]uch statement may be dictated into the record. The court's oral statement on the record here serves the purpose of the rule, to set forth clearly the court's reason for substituting its judgment for that of the jury. Civ.R. 50, Staff Notes. It further serves the function of guiding this court's review. Pusey v. Greif Bros. Corp. (1997), 124 Ohio App.3d 725, 729-30; Orensky v. Zaremba Mgmt. Co., Inc. (Dec. 7, 2000), Cuyahoga App. Nos. 77368 & 77369, unreported. Neither party has challenged the lack of any written statement by the court; therefore, we will assume, without deciding, that the court's oral statement complied with Civ.R. 50(E). -7- Each of Miller's assignments of error challenges the court's order granting a directed verdict for DaimlerChrysler. A motion for directed verdict questions the legal sufficiency of the evi- dence and therefore constitutes a question of law, not of fact. Glover v. Boehm Pressed Steel Co. (1997), 122 Ohio App.3d 702. If, *** after construing the evidence most strongly in favor of the party against whom the motion is directed, [the court] finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Civ.R. 50(A). We review this determination de novo. Miller first contends that the trial court erred by directing the verdict against him on his claim under Ohio's Lemon Law. The Lemon Law, R.C. 1345.72, provides in pertinent part: (A) If a new motor vehicle does not conform to any applicable express warranty and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer ***, the manufacturer, its agent, or its authorized dealer shall make any repairs as are necessary to conform the vehicle to such express warranty, ***. (B) If the manufacturer, its agent or its authorized dealer is unable to conform the motor vehicle to any applicable express war- ranty by repairing or correcting any defect or condition that substantially impairs the use, safety, or value of the motor vehicle to the consumer after a reasonable number of repair attempts, the manufacturer shall *** replace the motor vehicle *** or accept return of the vehicle from the consumer and refund each of the following: * * * A nonconformity is defined as: -8- *** any defect or condition which substan- tially impairs the use, value or safety of a motor vehicle and does not conform to the express warranty of the manufacturer or dis- tributor. R.C. 1345.71(E). We note that Ohio's Lemon Law is a consumer protection statute which should be liberally construed in favor of the consumer. General Motors Acceptance Corp. V. Hollanshead (1995), 105 Ohio App.3d 17, 22. Miller asserts that the court erroneously required him to identify the exact defect in the Jeep. He counters that his burden of proof under the Lemon Law is to present evidence from which a reasonable inference can be made that a specific problem with the vehicle is due to a defective part which is covered by the war- ranty. Reddin v. Toyota Motor Distributors, Inc. (Feb. 22, 1991), Wood County App. No. WD-90-2, unreported. Even accepting the standard Miller proposes, however, the evidence he presented at trial did not meet it. Miller testified that the vehicle makes an intermittent groaning, grinding noise on turns and he feels vibrations in the steering column. Repairs were performed which were calculated to correct this described problem, but they did not. Although it is clear that DaimlerChrysler was unable to correct the intermittent vibrations and noise, there is no evidence in the record that the vibrations and noise substantially impair the use, value or safety of [the] motor vehicle. There is no evidence it affected the engine, drive train, or mechanical functioning of the Jeep. Hollanshead, 105 Ohio App.3d at 23. There is no evidence the noise -9- and vibrations affected the safety of the vehicle. LaBonte v. Ford Motor Co. (Oct. 7, 1999), Cuyahoga App. No. 74855, unreported. Therefore, we find no reasonable jury could conclude that there was any substantial defect, as required by the statute. Stepp v. Chrysler Corp. (Nov. 7, 1996), Knox App. No. 95CA000052, unre- ported. Furthermore, as discussed below in connection with appel- lant's second assignment of error, intermittent noise and vibra- tions alone, unaccompanied by any functional impairment, are not circumstantial evidence of a defect. Accordingly, the directed verdict for DaimlerChrysler was appropriate on Miller's Lemon Law claim. Miller's second assignment of error asserts that the court erred by directing the verdict against him on his breach of express warranty claim under the Magnuson-Moss Warranty Act, 15 U.S.C. Sections 2301 et seq. Like Ohio's Lemon Law, the Magnuson-Moss Warranty Act provides: *** if the product (or component part thereof) contains a defect or malfunction after a reasonable number of attempts by the warrantor to remedy defects or malfunctions in such product, such warrantor must permit the consumer to elect either a refund for, or re- placement without charge of, such product or part (as the case may be). *** 15 U.S.C. Section 2304(a)(4). The Act creates a cause of action for a consumer who is damaged by the failure of a warrantor to comply with any of its obligations under a written warranty or under the Act. 15 U.S.C. Section 2310(d). -10- Appellant complains that the trial court's ruling required him to present expert testimony that the noise and vibrations were caused by a defect in the vehicle. He asserts that the jury in this case certainly would have been able to draw upon their own experiences and common sense to make a determination as to whether the noise and vibration felt by the Plaintiff was a defect in the vehicle. Careful analysis of the phrasing of appellant's arguments demonstrates the logical difficulty with them. Noise and vibration are not defects themselves. As the court correctly recognized, they are symptoms of a defect. In some instances, the symptoms may be circumstantial evidence of a defect. This was the case in Reddin v. Toyota Motor Distribu- tors, Inc. (Feb. 22, 1991), Wood App. No. WD-90-2, unreported, for example, where the vehicle would not start. However, the fact that the vehicle makes an intermittent groaning or grinding noise while executing a turn and the steering column vibrates, without evidence of any functional impairment, did not, in itself, prove that the vehicle contained a defect or malfunction. Something more was needed to connect that symptom to a defect in material, workman- ship or factory preparation covered by the warranty. Miller did not show that the noise and vibrations were caused by a defect simply by showing that repairs were performed free of charge under warranty. The repairs were intended to correct poten- tial defects which could be causing these symptoms. That the repairs failed to correct the problem shows only that the symptoms -11- were not caused by that potential defect, nothing more. Cf. Hill v. Toyota Motor Sales, U.S.A., Inc. (Feb. 10, 1995), Montgomery App. No. 14465, unreported (plaintiff failed to show that lag in transmission was caused by defect and was not part of normal shifting pattern). Therefore, we agree with the trial court that Miller failed to demonstrate that the vehicle was defective. The second assignment of error is also overruled. Finally, Miller challenges the trial court's order directing the verdict in favor of DaimlerChrysler on Miller's claim under the Magnuson Moss Warranty Act for breach of the implied warranty of merchantability. To prove this claim, Miller had to show that the vehicle was not fit for the ordinary purpose for which it was used. We agree with the trial court that, as a matter of law, intermittent noise and vibration which do not interfere with the functioning of the vehicle do not render a vehicle unfit for its ordinary purpose. LaBonte v. Ford Motor Co. (Oct. 7, 1999), Cuyahoga App. No. 74855, unreported, at 17-18. Therefore, no reasonable jury could have found for Miller on this claim. Accordingly, we overrule the third assignment of error and affirm the trial court's judgment. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. -12- It is ordered that a special mandate issue out of this court directing the Cuyahoga County 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. PATRICIA A. BLACKMON, J. and TERRENCE O'DONNELL, J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .