[Cite as Whitt v. Mazda Motor of Am., Inc., 2011-Ohio-3097.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

WILLIAM E. WHITT, JR., ET AL.                              JUDGES:
                                                           Hon. Patricia A. Delaney, P.J.
        Plaintiffs-Appellants                              Hon. William B. Hoffman, J.
                                                           Hon. John W. Wise, J.
-vs-
                                                           Case No. 2010CA00343
MAZDA MOTOR OF AMERICA, INC.,
ET AL.
                                                           OPINION
        Defendants-Appellees




CHARACTER OF PROCEEDING:                              Appeal from the Stark County Common
                                                      Pleas Court, Case No. 2010CV00602


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               June 20, 2011


APPEARANCES:


For Plaintiffs-Appellants                             For Defendants-Appellees


G. IAN CRAWFORD                                       H. TOBY SCHISLER
Crawford, Lowry & Associates, L.L.C.                  ALICIA M. STEFANSKI
116 Cleveland Ave., N.W., Suite 800                   Dinsmore & Shohl
Canton, Ohio 44702                                    1900 Chemed Center
                                                      255 E. Fifth Street
                                                      Cincinnati, Ohio 45202
Stark County, Case No. 2010CA00343                                                     2

Hoffman, J.


       {¶1}   Plaintiffs-appellants William E. Whitt, Jr., et al. appeal the November 18,

2010 Judgment Entry entered by the Stark County Court of Common Pleas, which

granted summary judgment in favor of defendant-appellee Mazda Motor of America,

Inc.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 21, 2008, Appellants purchased a 2008 Mazda CX-7 from Park

Mazda. Appellants began to experience problems with the vehicle and brought the

vehicle to Firestone in Canton, Ohio for repair.         Thereafter, on three additional

occasions Appellants brought the vehicle to Park Mazda with complaints of tire wear as

well as noises and/or vibrations from the tires. Park was unable to resolve the issue,

and Appellants presented the vehicle to other dealers, all to no avail.

       {¶3}   On February 12, 2010, Appellants filed a Complaint in the Stark County

Court of Common Pleas, naming Appellee and NSGM Corporation dba Park Mazda of

Wooster as defendants. The Complaint alleged violations of Ohio’s Lemon Law, breach

of expressed and implied warranties, violations of the federal Magnuson-Moss Warranty

Act, and violations of Ohio’s Consumer Sales Practices Act.          Following discovery,

Appellee filed a motion for summary judgment. Appellants filed a motion in opposition

thereto to which Appellee filed a reply brief. Via Judgment Entry filed November 18,

2010, the trial court granted summary judgment in favor of Appellee, finding the

problems Appellants experienced with their vehicle were caused by a design defect.

The trial court concluded the vehicle warranty did not extend to defects in design;

therefore, Appellants’ claims fail.
Stark County, Case No. 2010CA00343                                                     3


      {¶4}   It is from this judgment Appellants appeal, raising the following

assignments of error:

      {¶5}   “I. THE COURT BELOW ERRED AS A MATTER OF LAW TO THE

EXTENT IT FOUND THAT OHIO REVISED CODE §1345.71 ET SEQ. (OHIO’S

‘LEMON LAW’) DID NOT APPLY TO THE CASE AT BAR.

      {¶6}   “II. THE COURT BELOW ERRED AS A MATTER OF LAW TO THE

EXTENT IT FOUND THAT OHIO REVISED CODE §1345.01 ET SEQ. (OHIO’S

CONSUMER SALES PRACTICES ACT) DID NOT APPLY TO THE CASE AT BAR

AND THAT PLAINTIFFS-APPELLANTS COULD NOT PROCEED UNDER ANY

CAUSE OF ACTION BASED ON AN ALLEGED BREACH OF THE WRITTEN

WARRANTY.”

                                     Standard of Review

      {¶7}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶8}   Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to 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 party against whom the motion for summary
Stark County, Case No. 2010CA00343                                                      4

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶9}   It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
Stark County, Case No. 2010CA00343                                                       5


                                              I & II

       {¶10} Because Appellants’ assignments of error both assert error in the trial

court’s granting summary judgment in favor of Appellee, we shall address them

together. In their first assignment of error, Appellants challenge the trial court finding

R.C. 1345.71, et seq., Ohio’s Lemon Law, was not applicable to the instant action. In

their second assignment of error, Appellants challenge the trial court finding R.C.

1345.01, et seq, Ohio’s Consumer Sales Practices Act, was not applicable to the instant

situation; therefore, Appellants could not proceed under any cause of action based upon

an alleged breach of expressed or implied warranty.

       {¶11} R.C. 1345.71, et seq. is designed to protect consumers from chronically

defective new automobiles. It requires new vehicles to live up to warranties given by

manufacturers. Ohio’s Lemon Law attaches a clear duty to sellers, and provides a clear

remedy to buyers should the seller breach its duty.

       {¶12} Pursuant to R.C. 1345.72(A), a vehicle must abide by its warranty, and if

the condition of the automobile does not meet what is warranted, the seller must repair

it. R.C. 1345.72(A) provides:

       {¶13} “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 during the period of one year following the date of original delivery

or during the first eighteen thousand miles of operation, whichever is earlier, the

manufacturer, its agent, or its authorized dealer shall make any repairs as are

necessary to conform the vehicle to such express warranty, notwithstanding the fact

that the repairs are made after the expiration of the appropriate time period.”
Stark County, Case No. 2010CA00343                                                        6


       {¶14} While R.C. 1345.72(A) attaches a clear duty on sellers and gives them the

opportunity to preclude recovery by making prompt repairs, R.C. 1345.72(B) provides

consumers a swift and simple remedy should the car not be made right within a

reasonable number of attempts. R.C. 1345.72(B) reads:

       {¶15} “(B) If the manufacturer, its agent, or its authorized dealer is unable to

conform the motor vehicle to any applicable express warranty by repairing or correcting

any nonconformity after a reasonable number of repair attempts, the manufacturer, at

the consumer's option, and subject to division (D) of this section, either shall replace the

motor vehicle with a new motor vehicle acceptable to the consumer or shall accept

return of the vehicle from the consumer and refund each of the following:

       {¶16} “(1) The full purchase price;

       {¶17} “(2) All incidental damages, * * *.”

       {¶18} The manufacturer’s express warranty in the case sub judice provides:

       {¶19} “Mazda warrants that your new Mazda Vehicle is free from defects in

material or workmanship subject to the following terms and conditions.”

       {¶20} The trial court found the warranty did not cover claims of design defects.

Appellant William Whitt, an ASE certified mechanic1, testified the design and

specifications relative to the alignment/suspension were the only cause for the tire wear

on his vehicle. Appellant William Whitt specifically stated the problems he experienced

with his vehicle were the results of this alleged design defect.

       {¶21} To reiterate, Ohio’s Lemon Law requires manufacturers to honor a new

motor vehicle’s express warranty by making any repairs necessary to conform the

1
 An ASE certified mechanic is certified through the National Institute of Automotive
Service Excellence after passing an examination.
Stark County, Case No. 2010CA00343                                                         7


vehicle to the warranty. The problems about which Appellants complained did not fall

within the applicable expressed warranty on the vehicle. Accordingly, we find the trial

court did not err in finding R.C. 1345.71, et seq. did not apply, and did not err in granting

summary judgment in favor of Appellee on this issue.

       {¶22} We now turn to Appellants’ second assignment of error.              Appellants

maintain the trial court erred in finding they could not maintain their breach of warranty

claims.

       {¶23} Congress enacted the Magnuson-Moss Warranty Act, Section 2301 et

seq., Title 15, U.S.Code, in 1975, in response to what it perceived to be widespread

misuse by merchants of express warranties and disclaimers. Taylor, Read the Fine

Print: Alabama Supreme Court Rules that Binding Arbitration Provisions in Written

Warranties are Okay (2001), 2001 J.Disp.Resol. 165, fn. 2. The Act establishes a

federal right of action for consumers to enforce written or implied warranties against

suppliers, warrantors, or service contractors. Hyundai Motor Am., Inc. v. Goodin

(Ind.2005), 822 N.E.2d 947, 951. In addition to these protections, the Act limits the

ability of manufacturers to disclaim or modify implied warranties in cases where they

have offered express warranty protection. Id. The Act does not, however, establish new

implied warranties or otherwise modify the implied warranties existing according to state

law. Instead, the Act looks to the governing state law and adopts the implied warranty

protections already established.

       {¶24} In order to establish a breach of a written warranty under Magnuson Moss,

Appellants must establish the existence of a written warranty and that the manufacturer

failed to cure a defect in their vehicle after being afforded a reasonable number of
Stark County, Case No. 2010CA00343                                                   8

attempts. 15 U.S.C. 2301, et seq.; Sharkus v. Daimler Chrysler Corp., Cuyahoga App.

No. 79218, 2002-Ohio-5599, at para 11. Having found, supra, the written warranty on

Appellants’ vehicle did not cover design defects, we find Appellants cannot establish a

claim under the Magnuson-Moss Warranty Act.

       {¶25} Furthermore, Appellants’ claims for breach of implied warranty also fail.

“[P]urchasers of automobiles may assert a contract claim for breach of implied warranty

only against parties with whom they are in privity” Curl v. Volkswagen of America, Inc.

114 Ohio St.3d 266, 2007-Ohio-3609, at 26. Here, the trial court correctly found

Appellants were not in privity with Appellee.

       {¶26} Appellants’ claims under the Ohio Consumer Sales Practices Act are

based upon the assertion Appellee breached its expressed and implied warranty

obligations to Appellants. Having found Appellee did not breach any warranty

obligations, we find the trial court did not err in finding the Ohio Consumers Sales

Practices Act not applicable to the instant action.

       {¶27} Based upon the foregoing, Appellants’ first and second assignments of

error are overruled.
Stark County, Case No. 2010CA00343                                                9


      {¶28} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, J. concur                          s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ Patricia A. Delaney _________________
                                         HON. PATRICIA A. DELANEY


                                         s/ John W. Wise _____________________
                                         HON. JOHN W. WISE
Stark County, Case No. 2010CA00343                                               10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


WILLIAM E. WHITT, JR., ET AL.             :
                                          :
       Plaintiffs-Appellants              :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
MAZDA MOTOR OF AMERICA, INC.,             :
ET AL.                                    :
                                          :
       Defendants-Appellees               :        Case No. 2010CA00343


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
