[Cite as Mitchell v. Brownie's Indep. Transm., 2018-Ohio-32.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 TERRANCE MITCHELL                                     :
                                                       :
         Plaintiff-Appellee                            :    Appellate Case No. 27563
                                                       :
 v.                                                    :    Trial Court Case No. 2015-CVI-2989
                                                       :
 BROWNIE’S INDEPENDENT                                 :    (Civil Appeal from Municipal Court)
 TRANSMISSION                                          :
                                                       :
         Defendant-Appellant                           :


                                               ...........

                                              OPINION

                            Rendered on the 5th day of January, 2018.

                                               ...........

TERRANCE MITCHELL, 205 West Third Street, Dayton, Ohio 45417
    Plaintiff-Appellee-Pro Se

MARIA L. RABOLD, Atty. Reg. No. 0089080, 443 East Central Avenue, Miamisburg, Ohio
45342
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, J.
                                                                                            -2-




       {¶ 1} Defendant-appellant, Brownie’s Independent Transmission (“BIT”), appeals

a decision of the Dayton Municipal Court awarding judgment to plaintiff-appellee,

Terrance Mitchell, following a bench trial. For the reasons outlined below, the judgment

of the trial court will be reversed.



                            Facts and Course of Proceedings

       {¶ 2} On July 21, 2015, Mitchell filed a pro se complaint in the small claims division

of the Dayton Municipal Court alleging that BIT owed him $1,161.34 for failing to repair

his 2003 Chevy Blazer. The matter proceeded to a bench trial before a magistrate on

August 19, 2015. Mitchell appeared at trial and testified on his own behalf while BIT was

represented by counsel.

       {¶ 3} At trial, Mitchell testified that in November 2012, he drove his vehicle to BIT’s

automotive repair shop located on Main Street in Dayton, Ohio, because “the

transmission was slipping” and his vehicle was “doing a jerk.” Trial Trans. (Aug. 19,

2015), p. 3, 6. Mitchell testified that BIT performed a diagnostic inspection on his vehicle

and confirmed that the transmission needed repaired. Mitchell provided an invoice to

the magistrate dated November 28, 2012, that itemized the agreed-upon repairs and

other costs, which totaled $1,161.34. See Plaintiff’s Exhibit I. The invoice noted that

“Brownies IT rebuilt transmission [and] rebuilt torque converter with a 6 month 6,000 mile

warrant[y] if repaired at 1901 North Main Street location only.” Id.

       {¶ 4} Mitchell testified that his vehicle was stored at BIT’s Dixie Drive location while

he was making payments toward the repair cost. Mitchell claimed that after he made his
                                                                                         -3-


final payment, BIT informed him that his vehicle would not start despite BIT performing

the agreed-upon repairs and installing new spark plugs. According to Mitchell, BIT told

him that their best mechanic was going to look into the matter.          However, shortly

thereafter, BIT contacted Mitchell and explained that it could not fix anything else because

the shop only worked on transmissions. Mitchell testified that he did not know whether

BIT fixed the transmission on his vehicle as promised.

       {¶ 5} It is undisputed that BIT returned the inoperable vehicle to Mitchell on

January 12, 2013, by towing the vehicle to Mitchell’s house on a flatbed truck. Mitchell

testified that his vehicle has not been moved or worked on by another mechanic since its

return. To establish this, Mitchell provided the magistrate with two photographs that he

claimed he took the day before trial. One of the photographs depicts a green Chevy

Blazer and the other depicts a speedometer. See Plaintiff’s Exhibits II and III.   Mitchell

testified that the photographs show his vehicle parked at the location where BIT returned

it, and the vehicle’s speedometer reading, which had not changed significantly since it

was dropped off at BIT on November 28, 2012.1

       {¶ 6} Following Mitchell’s testimony, BIT moved the magistrate to dismiss

Mitchell’s claim on grounds that it was filed outside the applicable two-year statute of

limitations for claims alleging damage to personal property. The magistrate advised that

he would have to research the matter and would accept additional briefs on the issue. In

response, BIT indicated that it would proceed at trial with the motion to dismiss pending.

       {¶ 7} In proceeding at trial, BIT did not attempt to cross-examine Mitchell or



1
 The speedometer reading shown in the photograph was 129,063, while the speedometer
reading recorded on the November 28, 2012 invoice was 129,061.
                                                                                         -4-


present any of its own witnesses. Rather, BIT’s attorney argued that the November 28,

2012 invoice presented by Mitchell indicated that there were other problems with the

vehicle. Specifically, BIT pointed to a notation on the invoice that stated: “While [your

vehicle] was here we took the opportunity of inspecting it and find that the following items

need attention—Engine Codes P128 - P155 - P300 - P442 Needs [illegible] minor oil leaks

[check] exhaust system.” Plaintiff’s Exhibit I.

       {¶ 8} BIT also argued that Mitchell failed to present any evidence demonstrating

that the vehicle would not start due to the transmission or torque converter not working.

BIT maintained that it performed the work on those parts of the vehicle as promised and

that a number of other issues could have arisen while the vehicle was being stored in wait

of Mitchell’s payments.

       {¶ 9} BIT provided a business record to the magistrate showing that Mitchell’s

vehicle was returned to him on January 12, 2013, thus establishing a 46-day storage

period. See Defendant’s Exhibit I. BIT also argued that the vehicle was operable when

it was driven to BIT’s Dixie Drive location for storage, as BIT claimed that Mitchell would

have otherwise been charged for a tow to that location.

       {¶ 10} Following the bench trial, on August 24, 2015, BIT submitted a brief in

support of its motion to dismiss arguing that Mitchell brought his claim past the two-year

statute of limitations in R.C. 2305.10(A), which applies to product liability claims and

claims alleging bodily injury and injury to personal property. Mitchell did not file a brief

in opposition.

       {¶ 11} On October 14, 2015, the magistrate issued a written decision overruling

BIT’s motion to dismiss and granting judgment in favor of Mitchell in the amount of
                                                                                         -5-


$1,161.34. In overruling BIT’s motion to dismiss, the magistrate found that Mitchell’s

claim sounded in breach of contract, which, pursuant to R.C. 2305.06, has an eight-year

statute of limitations. Accordingly, the magistrate concluded that Mitchell had brought

his claim within the applicable limitations period.

       {¶ 12} In granting judgment in favor of Mitchell, the magistrate found, based on the

evidence presented at trial, that Mitchell had entered into an implied contract with BIT in

which Mitchell agreed to pay BIT to fix the transmission on his vehicle. The magistrate

also found that after Mitchell made his final payment to BIT, his vehicle would not start

and that BIT towed the vehicle to Mitchell’s house where it has remained ever since. The

magistrate further found that Mitchell presented sufficient evidence demonstrating that

BIT failed to fix the vehicle’s transmission. The magistrate based this finding on the fact

that Mitchell’s vehicle was no longer operable. In light of these findings, the magistrate

awarded $1,161.34 to Mitchell.

       {¶ 13} On October 28, 2015, BIT filed objections to the magistrate’s decision

arguing that Mitchell failed to present sufficient evidence to establish his claim. Mitchell

also argued that his claim was otherwise barred by the two-year statute of limitations in

R.C. 2305.10(A).

       {¶ 14} On February 25, 2016, the trial court issued an entry overruling BIT’s

objections and adopting the magistrate’s decision.        Thereafter, BIT filed a notice of

appeal from the trial court’s decision, which we subsequently held was not a final

appealable order since the trial court did not separately enter its own judgment setting

forth the outcome of the dispute and the remedy provided. Accordingly, we dismissed

the appeal to allow for the trial court to enter a final appealable order.
                                                                                             -6-


       {¶ 15} On April 6, 2017, the trial court entered an amended entry overruling BIT’s

objections to the magistrate’s decision that adopted the magistrate’s decision and

separately entered judgment in favor of Mitchell against BIT in the amount of $1,161.34.

BIT then filed a notice of appeal from that decision and submitted an appellate brief raising

three assignments of error for review.



                                 First Assignment of Error

       {¶ 16} BIT’s First Assignment of Error is as follows:

       THE TRIAL COURT             ERRED WHEN IT             FAILED TO SUSTAIN

       DEFENDANT’S MOTION TO DISMISS.

       {¶ 17} Under its First Assignment of Error, BIT contends that the trial court should

have granted its motion to dismiss because Mitchell’s claim was filed beyond the two-

year statute of limitations in R.C. 2305.10(A), which applies to product liability claims and

actions for bodily injury or injury to personal property.       Therefore, BIT is essentially

challenging the trial court’s finding that Mitchell’s claim sounded in breach of contract and

that he had an eight-year statute of limitations period.

       {¶ 18} “In determining the statute of limitations applicable to an action, the court

must look to the true nature or subject matter of the acts giving rise to the claim for relief.”

Hammer v. Rose, 2d Dist. Montgomery No. 15277, 1995 WL 783658, *1 (Dec. 29, 1995),

citing Doe v. First United Methodist Church, 68 Ohio St.3d 531, 536, 629 N.E.2d 402

(1994), superseded on other grounds by enactment of R.C. 2305.111(C). “To properly

characterize the nature of a cause of action, we must look beyond the form in which it

was pleaded.” Bragg v. Gollahon, 2d Dist. Montgomery No. 15931, 1996 WL 685571,
                                                                                            -7-

*3 (Nov. 29, 1996), citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465

N.E.2d 1298 (1984). “ ‘The grounds for bringing the action are the determinative factors,

the form is immaterial.’ ” Id., quoting Hambleton at 183.

       {¶ 19} “A breach of contract is defined as the failure, without legal excuse, to

perform any promise that forms a whole or part of the contract.” J & J Schlaegel, Inc. v.

Union Twp. Bd. of Trustees, 2d Dist. Champaign Nos. 2005-CA-31, 2005-CA-34, 2006-

Ohio-2913, ¶ 44, citing National City Bank of Cleveland v. Erskine & Sons, 158 Ohio St.

450, 110 N.E.2d 598 (1953), paragraph one of syllabus. In other words, “ ‘[a] breach of

contract occurs when a party demonstrates the existence of a binding contract or

agreement; the nonbreaching party performed its contractual obligations; the other party

failed to fulfill its contractual obligations without legal excuse; and the nonbreaching party

suffered damages as a result of the breach.’ ” Otstot v. Owens, 2d Dist. Clark No. 2015-

CA-57, 2016-Ohio-233, ¶ 10, quoting Auto Sale, L.L.C. v. Am. Auto Credit, L.L.C., 8th

Dist. Cuyahoga No. 102438, 2015-Ohio-4763, ¶ 15.

       {¶ 20} A trial, Mitchel testified: “[What] I’m suing for is the money that I paid to get

this service done to my vehicle which is one thousand one hundred and sixty-one dollars

and thirty-four cent[s]. I would like them to do what they were supposed to do and fix my

vehicle * * * If they can’t get it to run I would like to be paid the blue book value of the

2003 Chevy Blazer with a slipping transmission.” Trial Trans. (Aug. 19, 2015), p. 6.

       {¶ 21} Mitchell further testified: “They was going to fix it and everything after I was

making payments. I made the payments the final one they told me it was ready but when

they told me it wouldn’t start so how do I know that they did anything? That’s the thing

I’m wondering. I drove it up there and now it don’t run at all? * * * That’s my problem.”
                                                                                            -8-

Id. at 7.

        {¶ 22} In addition, Mitchell’s complaint alleged the following: “I paid for my vehicle

to run, but [BIT] didn’t fix anything. I drove my 2003 Blazer to [BIT] on Main St. and when

[BIT] was done working on my car they couldn’t get my 2003 Blazer to start.” Complaint

(July 21, 2015), Dayton Municipal Court Case No. 2015 CVI 2989, Docket No. 1, p. 1.

        {¶ 23} Mitchell’s testimony and complaint indicate that he is claiming BIT did not

perform the agreed-upon repairs to his vehicle. There is no dispute that the parties

agreed BIT would fix the transmission and torque converter on Mitchell’s vehicle in

exchange for Mitchell paying BIT $1,161.34. We therefore agree with the trial court and

find that Mitchell’s claim sounds in breach of contract.

        {¶ 24} In so holding, we note that the trial court determined the parties entered into

an implied contract, yet applied the eight-year statute of limitations for written contracts in

R.C. 2305.06.      This, however, amounts to harmless error because the statute of

limitations for implied contracts is six years pursuant to R.C. 2305.07, and Mitchell

brought his breach of contract claim within six years after the cause accrued. Because

Mitchell’s claim did not fall outside the applicable statute of limitations in R.C. 2305.07,

the trial court did not err in overruling BIT’s motion to dismiss.

        {¶ 25} BIT also argues that the trial court should have granted its motion to dismiss

because Mitchell failed to present sufficient evidence of his claim at trial. However, BIT’s

motion to dismiss only requested dismissal based on the statute of limitations. BIT never

specifically moved the court to dismiss the case due to insufficient evidence, which is

essentially a Civ.R. 41(B)(2) motion for directed verdict in non-jury actions.            The

sufficiency and weight of the evidence presented at trial will be reviewed under BIT’s
                                                                                             -9-


Second Assignment of Error.

       {¶ 26} For the foregoing reasons, BIT’s First Assignment of Error is overruled.



                               Second Assignment of Error

       {¶ 27} BIT’s Second Assignment of Error is as follows:

       JUDGMENT IN FAVOR OF THE PLAINTIFF WAS AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 28} Under its Second Assignment of Error, BIT challenges the trial court’s

judgment in favor of Mitchell on the basis that it is against the manifest weight of the

evidence.

       {¶ 29} “ ‘[I]n order for an appellate court to reverse a decision as against the

manifest weight of the evidence in a civil context, the court must determine whether the

trier of fact, in resolving evidentiary conflicts and making credibility determinations, clearly

lost its way and created a manifest miscarriage of justice.’ ” Brewer v. Dick Lavy Farms,

L.L.C., 2016-Ohio-4577, 67 N.E.3d 196, ¶ 46 (2d Dist.), quoting Alh Properties, P.L.L. v.

Procare Automotive Serv. Solutions, L.L.C., 9th Dist. Summit No. 20991, 2002-Ohio-

4246, ¶ 12. “ ‘[M]anifest weight of the evidence’ refers to a greater amount of credible

evidence and relates to persuasion * * *.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, 972 N.E.2d 517, ¶ 19.

       {¶ 30} “In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence must

still exist on each element (sufficiency) and the evidence on each element must satisfy

the burden of persuasion (weight).” Id. “Preponderance of the evidence simply means
                                                                                         -10-


‘evidence which is of a greater weight or more convincing than the evidence which is

offered in opposition to it.’ ” In re Starks, 2d Dist. Darke No. 1646, 2005-Ohio-1912, ¶

15, quoting Black’s Law Dictionary (6th Ed.1998) 1182.

       {¶ 31} “In weighing the evidence, the court of appeals must always be mindful of

the presumption in favor of the finder of fact.” Eastley at ¶ 21. When determining

whether the judgment below is against the manifest weight of the evidence “ ‘ “every

reasonable intendment and every reasonable presumption must be made in favor of the

judgment and the finding of facts.” ’ ” Id., quoting Seasons Coal Co., Inc. v. Cleveland,

10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 60, at 191-192 (1978). “ ‘ “If the evidence is susceptible of

more than one construction, the reviewing court is bound to give it that interpretation

which is consistent with the verdict and judgment, most favorable to sustaining the verdict

and judgment.” ’ ” Id.

       {¶ 32} Before addressing the evidence in this case, we note that “[a] breach of

contract claim requires proof of the existence of a contract, performance by the plaintiff,

breach by the defendant, and resulting damage to the plaintiff.” Discover Bank v. Pierce,

2d Dist. Montgomery No. 25755, 2014-Ohio-625, ¶ 14, citing Sullivan v. Curry, 2d Dist.

Montgomery No. 23293, 2010-Ohio-5041, ¶ 43.

       {¶ 33} According to the record, there is no dispute that the parties entered into a

contract whereby Mitchell agreed to pay BIT $1,161.34 in exchange for BIT fixing the

transmission and torque converter on his 2003 Chevy Blazer. There is also no dispute

that between November 28, 2012 and January 12, 2013, Mitchell made payments to BIT

until the full amount owed for the repairs was paid in full.   Accordingly, the existence of
                                                                                          -11-


a contract, performance by Mitchell, and amount of alleged damages is not in dispute.

       {¶ 34} The relevant issue, however, is whether BIT breached its promise to repair

the transmission and torque converter. At trial, Mitchell failed to provide any evidence

establishing that BIT did not perform the agreed-upon repairs.             In fact, Mitchell

specifically testified that he did not know whether BIT repaired the transmission. See

Trial Trans. (Aug. 19, 2015), p. 6. Furthermore, Mitchell failed to provide any evidence

that his vehicle was rendered inoperable as a result of the repairs performed by BIT.

       {¶ 35} Nevertheless, in adopting the magistrate’s decision, the trial court found that

there was sufficient evidence showing that BIT breached its promise to fix the

transmission and torque converter due to the fact that the vehicle was returned to Mitchell

in an inoperable condition. The evidence, however, indicates that Mitchell’s vehicle was

operable even when there were issues with the transmission and torque converter, as

Mitchell drove his vehicle to BIT for repairs while those parts were not functioning

properly. This indicates that the operability of the vehicle does not correlate with the

condition of the transmission and torque converter. As a result, the fact that the vehicle

was inoperable does not necessarily mean that the transmission and torque converter

were not repaired as promised and working correctly.

       {¶ 36} Furthermore, the November 28, 2012 invoice submitted by Mitchell

establishes that there were other issues with the vehicle that needed to be addressed,

including problems with the engine, oil leaks and exhaust system. The evidence further

establishes that the vehicle was an older model and that it was stored in BIT’s Dixie Drive

lot for 46 days during the winter while Mitchell was making payments. Therefore, other

issues affecting the operability of Mitchell’s vehicle may well have developed during that
                                                                                          -12-


time.

        {¶ 37} Because Mitchell failed to present any evidence demonstrating that BIT did

not fix the transmission and torque converter or that his vehicle was rendered inoperable

as a result of the repairs performed by BIT, he failed to establish that BIT breached the

contract at issue. Moreover, the weight of the evidence indicates that the vehicle could

have been rendered inoperable for any number of reasons, including the issues noted on

the invoice or simply due to the fact that the vehicle was an older model that had not been

driven for an extended period of time.

        {¶ 38} For the foregoing reasons, BIT’s Second Assignment of Error is sustained.



                               Third Assignment of Error

        {¶ 39} BIT’s Third Assignment of Error is as follows:

        DEFENDANT’S        COUNSEL         WAS      NEVER       AFFORDED         THE

        OPPORTUNITY TO CROSS EXAM PLAINTIFF.

        {¶ 40} Under its Third Assignment of Error, BIT contends that the magistrate erred

in failing to afford it the opportunity to cross examine Mitchell. Our ruling on BIT’s Second

Assignment of Error renders this issue moot. Even if this issue was not moot, the record

indicates that BIT was never denied the opportunity to cross examine Mitchell, as BIT’s

counsel never attempted or requested to question Mitchell during trial, nor did counsel

raise any objection on that matter.

        {¶ 41} BIT’s Third Assignment of Error is overruled.



                                         Conclusion
                                                                                -13-


      {¶ 42} Having sustained BIT’s Second Assignment of Error, the judgment of the

trial court awarding Mitchell $1,161.34 is reversed.



                                     .............



DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:

Terrance Mitchell
Maria L. Rabold
Hon. Daniel G. Gehres
