[Cite as Swayze v. Firestone Complete Auto Care, 2012-Ohio-2111.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

DAVID SWAYZE                                           :

        Plaintiff-Appellant                            :            C.A. CASE NO.         24983

v.                                                     :            T.C. NO.     10CVF5335

FIRESTONE COMPLETE AUTO CARE                           :             (Civil appeal from
                                                                      Municipal Court)
        Defendant-Appellee                             :

                                                       :

                                            ..........

                                           OPINION

                        Rendered on the         11th        day of         May       , 2012.

                                            ..........

EDWARD J. DUFFY, JR., Atty. Reg. No. 0018980, 32 N. Dixie Drive, P. O. Box 76,
Vandalia, Ohio 45377
      Attorney for Plaintiff-Appellant

KYLE SHAW, Atty. Reg. No. 0077382, 250 E. Fifth Street, Suite 2200, Cincinnati, Ohio
45202
      Attorney for Defendant-Appellee

                                            ..........

FROELICH, J.

        {¶ 1}     David Swayze appeals from a judgment of the Dayton Municipal Court,
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which found, after a bench trial, in favor of Firestone Complete Auto Care1 on Swayze’s

claim for negligent repair of his vehicle. Swayze claims that the trial court’s judgment was

against the manifest weight of the evidence. For the following reasons, the trial court’s

judgment will be affirmed.

        {¶ 2}     According to the evidence at trial, Swayze was a long-time customer of the

Firestone Complete Auto Care store on Main Street in Dayton. In June 2008, the store

manager was Mike Norman, and Swayze routinely approached Norman directly about

repairs that he needed to have done.

        {¶ 3}     On June 24, 2008, Swayze took his 1998 Ford F-150 pickup truck to

Firestone for repair work. At that time, the truck’s odometer read 236,213 miles. Swayze

told Norman that the brakes felt like they were locking up.

        {¶ 4}     Norman testified for Firestone that Swayze pulled the vehicle into the bay,

and Firestone did a brake inspection. Norman stated that the truck’s brakes were worn and

the emergency brake cables were not working properly. Swayze asked Norman “what it

would take to fix the problem.” Norman responded that the truck needed rear brake shoes,

that the drums looked okay, but the emergency brake cables looked “bad” due to fraying and

wear. Norman testified that Swayze checked his Firestone credit card and decided only to

do the rear brake repair because his Firestone credit card was “maxed out.” Norman

testified that Swayze declined the work on the emergency brake cables, but agreed to replace

the rear brake shoes and the serpentine belt, which was badly cracked.                          A Firestone


            1
          At trial, defense counsel indicated that Firestone Complete Auto Care is a fictitious name under which
   Bridgestone Retail Operations LLC, the real party in interest, owns and operates
   auto care stores.
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technician replaced the truck’s rear brake shoes, the serpentine belt, and the alternator drive

belt. Swayze paid $251.96 for the repairs.

       {¶ 5}     Later that evening, Swayze took the truck back to Firestone and said that he

felt the same problem as before. The same Firestone technician looked at the truck and told

him that the new brake shoes just needed to be broken in.

       {¶ 6}      Swayze continued to drive the truck and to bring the truck to Firestone for

various repairs. On June 30, 2008, Firestone performed rear differential fluid service as

maintenance on the truck.     Norman testified that Swayze again chose not to have the

emergency brake cable work performed. On July 23, 2008, Firestone did work on the air

control valve.

       {¶ 7}     At approximately 8:00 p.m. on August 7, 2008, Swayze’s truck broke down

while he was driving. At that point, the truck’s mileage was 238,012. Swayze had the

truck towed to his home for the evening, and the next day he had the truck towed to Ohio

Automatic Transmission, where he had previously received service for unrelated problems.

Swayze reported to Ohio Automatic Transmission that he was having problems with the

transmission. According to Norman, Swayze also called Firestone and told Norman that the

brakes “went out and took out the rear differential.”

       {¶ 8}     Swayze’s truck was evaluated by Patti Thurman, the owner of Ohio

Automatic Transmission, and the vehicle was serviced by Russell Smith. Smith testified

that, when he took the rear brakes apart, he discovered that the brake shoes had been put on

backwards, that the hardware kit should have been replaced but was not, and that the slack

adjusters “were unable to move and were seized up.” Smith stated that friction had caused
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the brake shoes to crack. He testified that the brake job performed in June should have

lasted more than 1,800 miles. Smith also saw problems with the transmission and

differential.    At Thurman’s direction, Smith replaced the rear brakes and axles and

overhauled the differential and the transmission. The costs for these repairs was $5,028.84.

        {¶ 9}     Norman testified that he went to Ohio Automatic Transmission to look at

Swayze’s vehicle after being informed of the problems. He inspected the brake shoes and

saw that they were cracked down the middle. He stated that cracks are typically caused by

“high speeds towing” or an emergency brake that is sticking.           Norman testified that

Thurman also showed him the rear differential, which had been taken apart, and that the

clutch plates (which are built into the rear differential) were damaged, old, and worn.

Norman stated that Thurman told him, “The e-brake cable was engaged which possibly

caused the brakes to drag, finish off the old rear differential and wear out the clutch brakes

[sic] and do that.” Norman testified that Thurman had said that the damage was not

Firestone’s fault. (Swayze did not object to Norman’s testimony regarding his conversation

with Thurman.)

        {¶ 10} During cross-examination, Smith was asked whether the damage to

Swayze’s truck could have been caused by the emergency brake’s being engaged. Smith

stated that, to his knowledge, the emergency brake was not engaged, and he did not believe

the emergency brake caused the truck’s problems. However, he agreed that driving with the

emergency brake engaged could cause the clutches to go bad, which in turn could cause the

transmission to fail.

        {¶ 11}    Swayze testified that he had never used the emergency brake on the truck,
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but he recalled that Norman had told him not to use the emergency brake because it would

cause damage to the vehicle. Swayze denied that he had used his truck for heavy hauling or

loading between June 24 and August 8, 2008.

       {¶ 12} After August 2008, Swayze continued to have his truck serviced at

Firestone, and he indicated that he has not had any problems with his brakes since then.

Swayze stated that he received oil changes at Firestone and had his windshield wiper

assembly replaced there. Swayze testified that Firestone gave him a refund for the $251.96,

since the brakes had to be redone.

       {¶ 13} After considering the evidence, the trial court found in favor of Firestone. It

reasoned:

               The facts at Trial establish that Swayze drove the truck for 46 days

       and 1,700 miles before the 8/08/08 breakdown.           And after the work

       performed by Firestone on 6/24/08, Swayze took the truck back to Firestone 5

       (five) separate times for further service and repairs. The Court cannot find

       that the work by Firestone on 6/24/08 on Swayze’s truck was the proximate

       cause of the damage to Swayze. The lapse of 46 days between the time

       Firestone performed the repair work and the time the truck broke down, and

       Swayze’s continued use of the truck during that period, supports the Court’s

       view that Swayze has not established his claim by the requisite degree of

       proof. The Court, therefore, cannot award Plaintiff Swayze any damages as

       claimed in the Complaint.

       {¶ 14} Swayze appeals from the trial court’s judgment, claiming that the court’s
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decision is against the manifest weight of the evidence.

       {¶ 15}    The weight to be given the evidence and the credibility of the witnesses are

primarily matters for the trier of fact to determine. In re Guardianship of Smith, 2d Dist.

Clark No. 09 CA 69, 2010-Ohio-4528, ¶ 19, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967). The court of appeals has an obligation to presume that the findings of

the trier of fact are correct. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 24. “This presumption arises because the trial judge [or finder-of-fact] had

an opportunity ‘to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.’ * * * ‘A reviewing court should not reverse a decision simply because it holds

a different opinion concerning the credibility of the witnesses and evidence submitted before

the trial court. A finding of an error in law is a legitimate ground for reversal, but a

difference of opinion on credibility of witnesses and evidence is not.’” (Internal citations

omitted.) Id.

       {¶ 16}    A trial court’s judgment will be reversed only if its factual findings are

against the manifest weight of the evidence. KeyBank Natl. Assn. v. Mazer Corp., 2d Dist.

Montgomery No. 23483, 2010-Ohio-1508, ¶ 36. In the civil context, a judgment will not be

reversed by a reviewing court as being against the manifest weight of the evidence if there is

some competent, credible evidence going to all the essential elements of the case. C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus; State

v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.

       {¶ 17} Swayze argues that the evidence established that Firestone replaced the rear
                                                                                             7

brake shoes improperly by putting them on backward and that this negligence caused the

damage to his truck. Swayze emphasizes that Smith testified that the emergency brake did

not cause the breakdown of the vehicle and that Norman had no evidence to substantiate his

claim that faulty emergency brake cables or hauling caused the problems. Swayze further

takes issue with the trial court’s emphasis on the amount of time between Firestone’s

replacement of the brakes shoes and the August breakdown.

       {¶ 18} Upon review of the evidence, we cannot conclude that the trial court’s

judgment was against the manifest weight of the evidence.           Norman testified that he

informed Swayze that the emergency brake cables needed to be replaced on June 24, 2008,

and that Swayze declined that service. Norman further testified that, when he went to Ohio

Automatic Transmission to see Swayze’s vehicle after its breakdown, Thurman told him that

the emergency brake had been engaged, which had likely caused the damage to the rear

brakes, the differential, and the transmission. Smith did not believe that the emergency

brake was engaged and he opined that the emergency brake cables had not caused the

damage, but he acknowledged that driving with the emergency brake engaged could cause

the clutches to go bad, which in turn could cause the transmission to fail. In short, there was

competent, credible evidence to support the trial court’s judgment in favor of Firestone.

       {¶ 19} Smith testified that the rear brake shoes had been installed backward, and he

believed that the emergency brake cables had not caused the problems to Swayze’s vehicle.

Norman did not discuss whether the brake shoes had been installed properly, and he simply

noted that his inspection at Ohio Automatic Transmission revealed that the brake shoes were

cracked down the middle. The trial court could have reasonably chosen to believe that the
                                                                                          8

improper installation of the brake shoes precipitated the damage to the rear brakes, the

differential, and the transmission. Nevertheless, as discussed above, in considering all of

the evidence at trial, there was competent, credible evidence to support the view adopted by

the trial court, namely that Swayze had not proven by a preponderance of the evidence that

Firestone was responsible for the damage to his vehicle. The trial court’s judgment was not

against the manifest weight of the evidence.

       {¶ 20}    Swayze’s assignment of error is overruled.

       {¶ 21} The trial court’s judgment will be affirmed.

                                        ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Edward J. Duffy, Jr.
Kyle Shaw
Hon. John S. Pickrel
