Johnson v. Tansky Sawmill Toyota, Inc.
| Decision Date | 26 May 1994 |
| Docket Number | No. 93APG12-1663,93APG12-1663 |
| Citation | 95 Ohio App.3d 164,642 N.E.2d 9 |
| Parties | JOHNSON, Appellant, v. TANSKY SAWMILL TOYOTA, INC.; Huntington National Bank, Appellee. |
| Court | Ohio Court of Appeals |
Phillip D. Cameron, for appellant.
William J. Mooney, for Tansky Sawmill Toyota, Inc.
Weltman, Weinberg & Associates Co., L.P.A., Allen J. Reis and Luann K. Snyder, for appellee Huntington Nat. Bank.
Appellant, Paul Johnson, appeals from a judgment of the Franklin County Municipal Court which dismissed his complaint and entered judgment in favor of appellee, Huntington National Bank ("HNB"). Appellant sets forth the following assignment of error:
"The trial court erred in sustaining Appellee Huntington National Bank's, hereinafter referred to as HNB, motion to dismiss following the Appellant's presentation of his evidence TT, P 109, 1 11-21 on the basis that Appellee HNB was not liable as a principal for the acts committed by its agents at Tansky Sawmill Toyota, Inc."
Johnson went to Tansky Sawmill Toyota, Inc. ("Tansky") to purchase a new car. Based on negotiations with the salesman, Johnson hoped to purchase the car for $18,950. Johnson was taken to the office of Rhonda Russell, an employee of Tansky, who was introduced to Johnson as the bank representative. Russell inquired as to whether Johnson had a bank he preferred to deal with and, based on his past dealings with HNB, Johnson expressed a preference for that bank. Based on her calculations, Russell told Johnson the cost of purchasing the car was $525 per month for sixty months. Johnson decided it was more than he would be able to pay and, as he started to leave the dealership, Russell suggested he consider leasing the car. In response to an inquiry from Johnson, Russell stated the cost of the car was the same whether it was purchased or leased, and calculated a sixty-month lease would require payments of $402.46 per month.
Johnson signed the lease for a 1989 Toyota with HNB as the lessor. The lease was signed on behalf of the lessor by Rhonda Russell, and below her signature appears the printed word "title" above which was written "agent." 1 Midway through the lease, Johnson decided to purchase the car and when he received the title from the bank, discovered the purchase price upon which the lease payments were based was apparently $26,000, not $18,950, which Johnson understood to be the purchase price. After further investigation, Johnson determined that Russell had miscalculated the monthly payments for purchase of the car and that the correct monthly payments would have been $414.
Johnson filed suit against Tansky and HNB, alleging fraud and a violation of the Consumer Sales Practices Act. At the conclusion of Johnson's case, the court entered a verdict for the bank. 2
Appellant contends the trial court erred in granting judgment for the bank at the close of his case. Appellant argues there was sufficient evidence to show Russell was an agent of the bank and that the bank was liable for her fraudulent conduct.
In its entry, the trial court stated:
" * * * The Court, after weighing the evidence as required under Civ.R. 50(A)(4), found in favor of the defendant and dismissed plaintiff's claim due to a lack of evidence to support it."
In a trial to a court without a jury, a motion for judgment by a defendant at the close of plaintiff's case is one for dismissal, pursuant to Civ.R. 41(B)(2) and not for a directed verdict, pursuant to Civ.R. 50(A)(4). The distinction is critical because there are two different tests to be utilized by the court. Pursuant to Civ.R. 41(B)(2), the trial court is the trier of fact and is to weigh the evidence. A dismissal pursuant to Civ.R. 41(B)(2) will not be set aside unless it is incorrect as a matter of law or is against the manifest weight of the evidence.
Following a motion for a directed verdict, pursuant to Civ.R. 50(A)(4), the test is whether, construing the evidence most strongly in favor of the party against whom the motion is made, the court finds reasonable minds could come to only one conclusion which is adverse to the non-moving party. Under Civ.R. 50, the court is not the trier of fact and does not weigh the evidence. Appellant, however, has not assigned as error whether the trial court applied the correct standard in sustaining the bank's motion and, inasmuch as the court in its judgment entry stated it weighed the evidence, for purposes of this appeal, we will treat the court's dismissal as one pursuant to Civ.R. 41(B)(2).
Generally, an agency relationship is a...
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