[Cite as Long v. Rice, 2014-Ohio-5310.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


RANDY LONG,                                     :         OPINION

                 Plaintiff-Appellant,           :
                                                          CASE NO. 2014-A-0023
        - vs -                                  :

RALPH RICE,                                     :

                 Defendant-Appellee.            :


Civil Appeal from the Ashtabula County Court, Eastern Division.
Case No. 2012 CVF 00319.

Judgment: Affirmed.


Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Plaintiff-Appellant).

Katherine S. Riedel, Law Offices of Katherine S. Riedel Co., L.P.A, Jefferson
Commercial Park, 1484 State Route 46 North, Suite 5, Jefferson, OH 44047 (For
Defendant-Appellee).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Randy Long, appeals the judgment of the Ashtabula County

Court, Eastern Division, entering judgment in favor of appellee, Ralph Rice, on Mr.

Long’s fraudulent misrepresentation claim. For the following reasons, we affirm the

judgment of the trial court.

        {¶2}     Mr. Long initiated this action by filing a small claims complaint, claiming

Mr. Rice sold him a defective used tractor in a private sale and seeking $3000 in
damages. A small claims hearing was held on September 10, 2012. Following the

close of Mr. Long’s case, Mr. Rice made a motion to dismiss for failure to demonstrate a

right to relief, pursuant to Civ.R. 41(B)(2). The trial court granted the motion on the

grounds that the testimony did not establish fraudulent misrepresentation, especially

given Mr. Long’s failure to diligently inspect the tractor prior to the purchase. Mr. Long

appealed the judgment of the trial court. Long v. Rice, 11th Dist. Ashtabula No. 2012-A-

0056, 2013-Ohio-2402 (Long I). We held that Mr. Long presented unrebutted evidence

sufficient to withstand dismissal of his small claims complaint, and the matter was

reversed and remanded for a new hearing. Id. at ¶26-28.

       {¶3}    Following remand, the matter was transferred to the trial court’s regular

docket upon motion of Mr. Long, and his demand was increased to $5500. The case

was retried to the bench on February 11, 2014.

       {¶4}    It is undisputed that Mr. Long entered into an oral agreement with Mr. Rice

for the private sale of a used tractor around June 2011 for use on his small farm.

Neither party is a mechanic, nor is Mr. Rice a dealer or vendor of any kind. In exchange

for the tractor, Mr. Long traded his fully-operational 8N Ford tractor and paid $2000 in

cash. Mr. Long admits that he completed the purchase without first inspecting or testing

the tractor.

       {¶5}    Mr. Long testified that he explained to Mr. Rice the tractor had to be

“ready to go to the field.” According to Mr. Long, Mr. Rice stated the tractor “worked

good,” “was ready to go to the field,” and the only thing wrong with the tractor was the

necessity of vice grips to keep the fuel pump from leaking. When Mr. Rice delivered the

tractor, before the exchange of money took place, Mr. Long observed the tractor




                                             2
smoking.        According to Mr. Long’s testimony, Mr. Rice stated the tractor smoked

because it was the first time the tractor had been started that year and that it would quit

once it “warmed up.” Mr. Long admitted he should have canceled the deal at this point,

but he did not.

        {¶6}     Over the next few days, in changing and checking the oil, Mr. Long

determined the fuel pump was not functioning correctly.            Mr. Long explained he

confronted Mr. Rice, who agreed to contribute $500 to have the fuel pump repaired.

After Mr. Long installed the repaired fuel pump, however, the tractor continued to smoke

and have mechanical issues. Mr. Long took the tractor to a mechanic; there, he learned

the engine had a blown head gasket and a cylinder groove—serious mechanical defects

that require a new engine block. Mr. Long unsuccessfully attempted to get back his

tractor and money from Mr. Rice. Mr. Long never made any further repairs, and the

tractor remains in disrepair.

        {¶7}     Richard Ring testified as part of Mr. Long’s case. Mr. Ring previously sold

the tractor to Mr. Rice for $1000. Mr. Ring explained that he informed Mr. Rice the

hydraulic system did not function to his satisfaction and the “power takeoff rattled a little

bit”; thus, Mr. Long argued that Mr. Rice knew the tractor was defective prior to the sale

at issue but omitted these material facts. Mr. Ring indicated the tractor was old and had

a lot of upkeep on it, explaining he sold the tractor to Mr. Rice essentially for the value

of its tires.

        {¶8}     Thomas Jones also testified on behalf of Mr. Long. Mr. Long had taken

the engine block to Mr. Jones, who indicated that it had a blown head gasket and was

beyond repair. He also indicated it had been that way for quite some time. Mr. Jones




                                               3
provided Mr. Long with an estimate of $4400 to repair the engine, which included

replacing the engine block with a used part.

       {¶9}   Mr. Rice testified that the tractor was in rough shape when he bought it

from Mr. Ring in the spring of 2010. He stated his uncle spent a lot of time fixing it up,

but that it “smoked from the day I bought it till the day I sold it.” Mr. Rice stated that Mr.

Long inquired whether the tractor was “ready to go to the field.” In response, Mr. Rice

said, “I can tell you what I used it for last year. * * * But I didn’t do a lot of things with it

so I couldn’t guarantee anything[.]” Mr. Rice testified he told Mr. Long that vice grips

were necessary to keep the fuel pump from leaking and the three-point hitch had a

homemade lever. According to Mr. Rice, when Mr. Long asked about the smoke upon

delivery of the tractor, Mr. Rice simply said “yes, it does” smoke, because it was

obvious.

       {¶10} After Mr. Long confronted Mr. Rice about the faulty fuel pump, he

contributed $500 to have it repaired. When Mr. Long attempted to get back his tractor

and money from Mr. Rice, Mr. Rice offered to exchange the tractors but was not willing

to return the $2000. Mr. Rice testified that Mr. Long refused the tractor exchange. At

that point, Mr. Rice told him, “it was not my problem.”

       {¶11} Three witnesses also testified on behalf of Mr. Rice. Timothy Beebe, a

friend of Mr. Rice who works as an industrial maintenance mechanic, testified he helped

Mr. Rice with routine maintenance on the tractor. He stated that he never saw any

evidence of a blown head gasket and that the tractor could operate with a blown head

gasket without the operator being aware of the problem. Jacob Rice and Sonya Oliver

both testified to using the tractor the previous year. Jacob, Mr. Rice’s son, testified the




                                               4
tractor had been used for “field work, haying, [and] prepar[ing] an oak field with the plow

and disk * * *.” Sonya, Mr. Rice’s neighbor, testified she personally “[baled] hay with it

on [her] property and the adjoining property” without any problems.

       {¶12} Written closing arguments were submitted to the bench, and the trial court

issued a judgment entry on March 20, 2014, entering judgment in favor of Mr. Rice.

The court found that Mr. Long failed to prove his claim of fraudulent misrepresentation

by a preponderance of the evidence.

       {¶13} Mr. Long timely appeals and raises one assignment of error:

       {¶14} “The trial court’s decision is against the manifest weight of the evidence.”

       {¶15} Mr. Long frames his issue presented for review as whether he presented

“sufficient evidence to sustain his burden of proof.” However, that is not the issue in a

manifest weight challenge to a civil verdict.

       {¶16} “Sufficiency” and “weight” are distinct terms, “both quantitatively and

qualitatively different,” and are analyzed differently under the law. State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus. In Eastley v. Volkman, the

Ohio Supreme Court applied the analysis found in Thompkins to civil cases, explaining

that it is not appropriate to analyze “weight” and “sufficiency” arguments under a

merged standard of review. 132 Ohio St.3d 328, 2012-Ohio-2179, ¶17. If an appellate

court was required “to determine only whether there is sufficient evidence to support a

civil * * * verdict, then there would never be any review of manifest weight of the

evidence in these cases.” Id. at ¶18 (stating why the Court’s analysis in C.E. Morris Co.

v. Foley Constr. Co., 54 Ohio St.2d 279 (1978) had been misinterpreted). Accordingly,

Mr. Long’s statement of the issue and of the standard of review is incorrect.




                                                5
       {¶17} “[E]vidence must * * * exist on each element (sufficiency) and the evidence

on each element must satisfy the burden of persuasion (weight).”                Eastley at ¶19.

Sufficiency of the evidence is “a term of art meaning that legal standard which is applied

to determine whether the case may go to the [trier of fact] or whether the evidence is

legally sufficient to support the jury verdict as a matter of law.” Thompkins at 386,

quoting Black’s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of

adequacy.” Id. In contrast:

              [w]eight of the evidence concerns ‘the inclination of the greater
              amount of credible evidence, offered in a trial, to support one side
              of the issue rather than the other. It indicates clearly to the [trier of
              fact] that the party having the burden of proof will be entitled to their
              verdict, if, on weighing the evidence in their minds, they shall find
              the greater amount of credible evidence sustains the issue which is
              to be established before them. Weight is not a question of
              mathematics, but depends on its effect in inducing belief.’

Eastley at ¶12, quoting Black’s Law Dictionary 1594 (6th Ed.1990).

       {¶18} When reviewing a manifest weight challenge, the appellate court sits as

the “thirteenth juror.” Thompkins at 387. The reviewing court must consider all the

evidence in the record, the reasonable inferences, and the credibility of the witnesses to

determine whether, “in resolving conflicts in the evidence, the [trier of fact] clearly lost its

way and created such a manifest miscarriage of justice that the [verdict] must be

reversed and a new trial ordered. The discretionary power to grant a new trial should

be exercised only in the exceptional case in which the evidence weighs heavily against

the [verdict].” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶19} Mr.    Long’s    complaint    has     been   characterized    as     a   fraudulent

misrepresentation claim.      See Long I, supra, at ¶2.         To succeed on a claim for

fraudulent misrepresentation in the sale of personal property, Mr. Long must establish



                                               6
the following elements: (1) a false representation, or the concealment of a material fact,

made falsely; (2) knowledge of the falsity, or statements made with such recklessness

that knowledge is inferred; (3) intent to mislead another into relying on the

representation; (4) justifiable reliance upon the representation or concealment; and (5)

injury as a consequence of that reliance. Goddard v. Stabile, 185 Ohio App.3d 485,

2009-Ohio-635, ¶30 (11th Dist.2009).

       {¶20} In entering judgment for Mr. Rice, the trial court stated the following:

              [D]efendant     did      not   make      any    knowing,     affirmative
              misrepresentations upon which plaintiff was lawfully permitted to
              reasonably rely. In view of plaintiff’s scanty evaluation of the tractor
              before purchase, and in light of the defendant’s testimony, the court
              finds that plaintiff’s reliance upon statements of defendant, if any,
              was at no time reasonable. A person in defendant’s position is
              permitted some degree of “puffing” in selling this tractor. This
              defendant told the plaintiff there were no guarantees.

       {¶21} Mr. Long takes issue with the trial court’s characterization of Mr. Rice’s

alleged statements as puffery. Although the trial court suggests that some puffery by

Mr. Rice would have been appropriate during a sale of the tractor, the testimony reveals

that the point of sale conversation was disputed at trial. Therefore, the issue before the

trial court was not merely whether any statements made by Mr. Rice were puffery, but

whether the statements attributed to Mr. Rice by Mr. Long were in fact made.

       {¶22} At trial, the following relevant testimony was offered by Mr. Long: (1) he

told Mr. Rice “the hydraulics had to run good and it had to be ready to go the field or I

wanted nothing to do with it”; (2) Mr. Rice responded that “it all worked good and it was

ready to go to the field”; (3) the only problem Mr. Rice spoke of was the vice grips on

the fuel pump. Further, on cross-examination, Mr. Long admitted that Mr. Rice told him

he had used the tractor in his fields.



                                             7
        {¶23} However, on these same points, Mr. Rice offered the following testimony:

(1) Mr. Long asked whether the tractor was “ready to go to the field”; (2) he replied with

exactly what the tractor had been used for the previous year—pull wagons, brush hog,

bale hay, disc—and could not guarantee how it would perform in the future; (3) he told

Mr. Long the fuel line required a pair of vice grips to avoid fuel leaks and that there was

a “homemade lever for the three-point hitch.” In addition, Mr. Rice denied having any

knowledge of a blown head gasket or of any issue with the hydraulics at the time of

sale.

        {¶24} Accordingly, even if Mr. Long’s version of the point of sale conversation is

sufficient to establish a fraudulent misrepresentation claim, it was disputed by Mr. Rice’s

testimony. The trial court, as trier of fact, determined the more credible evidence and

testimony weighed in favor of Mr. Rice. Based on the evidence presented at trial, we

hold the trial court did not lose its way when entering judgment in favor of Mr. Rice.

        {¶25} Further, Mr. Long makes reference to our opinion in Long I, in which we

stated that Mr. Long “justifiably relied” on Mr. Rice’s statement that the tractor was “field

ready.” Long I at ¶20-22. Reliance on our previous opinion for such a proposition is

misplaced. We also stated in Long I that the unrefuted evidence presented by Mr. Long

was sufficient to withstand a motion to dismiss, because Mr. Rice had not presented a

defense to dispute the testimony. Id. Mr. Rice never had an opportunity to do so, as

the trial court granted the motion to dismiss following Mr. Long’s case in chief. Our

review in Long I was limited to the unrefuted testimony of Mr. Long and his witness;

such is not the case here.

        {¶26} Mr. Long’s assignment of error is without merit.




                                             8
      {¶27} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court, Eastern Division, is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




                                               9
