Zemcik v. LaPine Truck Sales & Equip. Co., 72035

CourtUnited States Court of Appeals (Ohio)
Citation706 N.E.2d 860,124 Ohio App.3d 581
Decision Date07 January 1998
Docket NumberNo. 72035,72035
PartiesZEMCIK, d.b.a. Owosso Refuse, Appellee, v. LaPINE TRUCK SALES & EQUIPMENT COMPANY, Appellant. *

Page 581

124 Ohio App.3d 581
706 N.E.2d 860
ZEMCIK, d.b.a. Owosso Refuse, Appellee,
No. 72035.
Court of Appeals of Ohio,
Eighth District, Cuyahoga County.
Decided Jan. 7, 1998.

[706 N.E.2d 861] Lawrence M. Baker, Cleveland, for appellee.

Persky, Shapiro, Salim, Esper, Arnoff & Nolfi Co., L.P.A., and Donald N. Jaffe, Cleveland, for appellant.

PORTER, Judge.

Defendant-appellant LaPine Truck Sales & Equipment Company ("LaPine") appeals from a summary judgment, jury verdict and treble damage judgment of $30,000 plus attorney fees and costs in favor of plaintiff-appellee Stephen Zemcik, d.b.a. Owosso Refuse ("Zemcik"), arising out of Zemcik's claim that defendant sold him a 1984 trash packer truck with a false odometer reading in violation of R.C. 4549.45. We find that the trial court erred in not entering summary judgment in favor of defendant on the grounds that the two-year statute of limitations (R.C. 4549.49[B]) barred Zemcik's action. We reverse and enter judgment for LaPine.

This case arose out of a negotiation for Zemcik's purchase of a used 1984 Ford LTS 8000 packer truck from LaPine in December 1991. Zemcik, who ran a trash-hauling business[706 N.E.2d 862] in Owosso, Michigan, saw LaPine's advertisement in a trade journal. Following telephone and other communications, the parties struck a deal for $21,100, which included LaPine's delivery of the truck to Zemcik in Michigan. The summary judgment proceeding reflected the following course of events.

On or about January 3, 1992, LaPine forwarded to Zemcik a Vehicle Order No. 8634 and, shortly thereafter, received the signed order back from Zemcik.

Page 583

Zemcik paid the purchase price, and the packer truck was delivered to Zemcik on January 9, 1992 in Michigan.

LaPine's witness, Sandra Richards, stated that in January 1992, in connection with the sale of the packer truck, she had forwarded to Zemcik a number of documents referred to as "power of attorney," "exemption certificate and affidavit regarding sale to an out-of-state resident," "power of attorney to execute application for title," and notification of driver's license information and a federal identification number. These title documents, which would have allowed LaPine to obtain the new certificate of title in Zemcik's name, were not executed or returned at that time by Zemcik because of the problems he discovered with the truck on delivery. Ultimately, in October 1992, Zemcik executed and returned a second set of requested documents to permit transfer of the certificate of title.

In January 1992, after inspecting the truck, Zemcik found a number of problems and consulted an attorney, who, on January 28, 1992, corresponded with John Spera, LaPine's vice-president, asserting, inter alia, an odometer misrepresentation. Zemcik's attorney, Kathy Fitzgerald, stated in her January 28, 1992 letter to John Spera:

"Further, Mr. Zemcik was not provided an odometer statement at the time of transfer of the vehicle from LaPine, contrary to federal law, 15 U.S.C.S. 1981, et seq. It appears that LaPine's oral representation concerning the mileage of the vehicle (60,000 miles) was false, and that the vehicle may actually have in excess of 161,000 miles. As you are no doubt aware, an entity in violation of Federal Odometer Requirements is liable for treble damages, together with actual attorney fees incurred by the purchase. In as much as Mr. Zemcik has paid $21,000 to LaPine for a vehicle which has no value to him, Mr. Zemcik's base damages are at least $21,000. Accordingly, were this matter to be subject of litigation, a minimum of $63,000, together with actual attorney fees, would be sought."

Subsequent correspondence between counsel for the parties proved unsuccessful in resolving the matter. Zemcik's attorney wrote on April 8, 1992, that "the basis on which Mr. Zemcik questions the accuracy of the vehicle's odometer includes not only the condition of the vehicle itself but the fact that the vehicle has a hub odometer which contains a reading in excess of 161,000 miles."

The dispute over the condition of the truck continued during the ensuing months. LaPine resisted Zemcik's attempts at rescission, and Zemcik subsequently made substantial repairs to the truck. Finally, the certificate of title was transferred to Zemcik on October 29, 1992, after he returned the second set of necessary title papers duly executed.

Page 584

On September 19, 1994, Zemcik filed a six-count complaint against LaPine and Sandra Richards, LaPine's title clerk, asserting false representations pertaining to the mileage on the vehicle (Count I); a violation of R.C. 4549.45 in not providing Zemcik with notice in writing as to the unreliability of the odometer (Count II); breach of an express warranty under R.C. 1302.26 on the basis of misrepresentations pertaining to the odometer mileage, revocation of acceptance, and a return of the purchase monies paid (Count III); odometer damages of $15,000 (Count IV); a violation of the Ohio Deceptive Trade Practices Act, R.C. 4165.02, for the odometer misrepresentations (Count V); and various improper notarial acknowledgments by Richards (Count VI). Plaintiff sought compensatory damages, punitive damages, treble damages under the Ohio Odometer Rollback and Disclosure Act (R.C. 4549.49), and attorney fees. Defendants filed their answer denying the claims.

The parties filed cross-motions for summary judgment. On January 17, 1996, the [706 N.E.2d 863] trial court denied LaPine's statute-of-limitations motion for summary judgment and overruled Zemcik's motion for summary judgment as to all of the counts except Count II, dealing with the violation of R.C. 4549.45. The court, without opinion or explanation, granted summary judgment to Zemcik on Count II and ordered the issue of damages to proceed to trial.

The case went to a jury trial before a visiting judge on December 11, 1996. At the conclusion of Zemcik's case-in-chief, the trial court dismissed defendant Richards from the case and directed a verdict for her as to Count VI. At the conclusion of all the evidence, the trial court granted defendant's motion for a directed verdict, dismissing Counts I, III, IV and V and submitted only the damage issue to the jury on Count II for the odometer violation of R.C. 4549.45 previously found on summary judgment. On December 12, 1996, the jury returned a verdict in favor of Zemcik for $10,000. By judgment entry filed on December 13, 1996, the court tripled the damages to $30,000 by virtue of R.C. 4549.49(A)(1). The trial court issued a further judgment entry on December 30, 1996, allowing Zemcik attorney fees of $20,000 and expenses of $2,177.53 pursuant to R.C. 4549.49(A)(2).

LaPine's motions for j.n.o.v. or a new trial were overruled, and this timely appeal ensued. No cross-appeal has been filed by Zemcik raising any issues adversely decided to him. We will address LaPine's Assignment of Error III first as we find it dispositive of the appeal.

"III. The trial court erred in failing to dismiss the complaint as the statute of limitations under R.C. § 4549.49(B) barred plaintiff's complaint for a violation of R.C. § 4549.45."

Under Civ.R. 56, summary judgment is proper when "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to

Page 585

judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 471-472, 364 N.E.2d 267, 273-274. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 2556, 91 L.Ed.2d 265, 278; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801-802. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138, 139-141.

However, the nonmoving party must...

To continue reading

Request your trial
241 cases
  • Adcor Indus., Inc. v. Bevcorp, LLC, 1:03 CV 1901.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • November 10, 2005
    ...Westerly, No. PC99-2859, 2002 WL 31867868, at *3 (R.I.Super.Dec.13, 2002) (holding the same); Zemcik v. LaPine Truck Sales & Eq. Co., 124 Ohio App.3d 581, 706 N.E.2d 860 (1998) (reversing, entering judgment as a matter of law where undisputed evidence showed that the misappropriation claim ......
  • Widok v. Estate of Wolf, 108717
    • United States
    • United States Court of Appeals (Ohio)
    • November 5, 2020
    ...of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). {¶ 44} Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of mate......
  • Cincinnati Ins. Co. v. CPS Holdings, Inc., 2006 Ohio 713 (OH 2/16/2006), 85967.
    • United States
    • United States State Supreme Court of Ohio
    • February 16, 2006
    ...Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales & Equipment (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860. The Ohio Supreme Court set forth the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1......
  • Castle Hill Holdings, L.L.C. v. Al Hut, Inc., 2006 Ohio 1353 (OH 3/23/2006), 86442.
    • United States
    • United States State Supreme Court of Ohio
    • March 23, 2006
    ...Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. La Pine Truck Sales & Equip. Co. (1997), 124 Ohio App.3d 581, 585, 706 N.E.2d {¶ 20} Before summary judgment may be granted, a court must determine that "(1) no genuine issue as to any material fact......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT