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Connors v. Target Automotive Group, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 23, 2017

ERIN M. CONNORS PLAINTIFF-APPELLANT AND CROSS-APPELLEE
v.
TARGET AUTOMOTIVE GROUP, INC. DEFENDANT-APPELLEE AND CROSS-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-826479

          ATTORNEYS FOR APPELLANT CROSS-APPELLEE Rosemary Taft-Milby Ronald I. Frederick James Wertheim Frederick & Berler L.L.C.

          ATTORNEYS FOR APPELLEE CROSS-APPELLANT Mary Jo Hanson, James P. Cullen James P. Cullen L.L.C., L.P.A.

          BEFORE: Kilbane, P.J., Stewart, J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Plaintiff-appellant, Erin Connors ("Connors"), appeals from the trial court's order denying her motion for attorney fees after she was awarded damages in a consumer sales practices action against defendant-appellee, Target Automotive Group, Inc. ("Target Automotive"). Target Automotive cross-appeals, challenging the trial court's damages award. For the reasons set forth below, we affirm the damages award, but we reverse the trial court's denial of Connors's attorney fees and remand with instructions to conduct a hearing to determine the amount of attorney fees.

         {¶2} On July 2, 2013, Connors and her father Rory Connors ("Rory") went to Target Automotive in Bedford, Ohio, after seeing an advertisement for a 2011 Dodge Avenger in "excellent condition." Connors traded in her 2004 Dodge Stratus and purchased the Dodge Avenger for $14, 975. Several weeks later, Connors began experiencing problems with the vehicle. She and Rory took it to North Olmsted Dodge and learned that it had been in an accident and had sustained extensive damage prior to the purchase. Connors returned the vehicle to Target Automotive for servicing but continued to experience problems with it.

         {¶3} On May 7, 2014, Connors filed a complaint against Target Automotive, alleging that Target Automotive failed to disclose the prior damage to the vehicle, falsely represented that it had performed repairs, and failed to provide Connors with an itemized list of repairs.[1] Connors set forth claims for violations of the Consumer Sales Practices Act ("CSPA") and fraud. The matter proceeded to trial before the court on August 25, 2015.

         {¶4} Connors testified that in June 2013, she was researching vehicles online and read an advertisement on AutoTrader for a 2011 Dodge Avenger in "excellent condition" that was for sale at Target Automotive. Connors and Rory went to Target Automotive to see the vehicle on June 29, 2013, and dealt with Massimo Condelli ("Condelli"). The vehicle had less than 36, 000 miles on it and was less than three years old. Condelli informed them that the vehicle was still under warranty from Chrysler. Condelli also told them that the warranty was transferable to the purchaser. No written warranty was provided, however. Rory asked Condelli if the vehicle had ever been in an accident. In response, Condelli told them that when the vehicle had less than 100 miles on it, a truck that was transporting it was involved in a "fender bender" but this accident did not damage the Dodge Avenger. Condelli then gave them the third page of an AutoCheck Report listing this accident.

         {¶5} Connors and Rory test drove the car on local streets and Connors then agreed to purchase it for $14, 975 plus tax. She made a $200 down payment, traded in her 2004 Dodge Stratus for $1, 498, and obtained bank financing for the balance.

          {¶6} Connors further testified that a few weeks after she purchased the vehicle, she began experiencing difficulties with the car during highway travel. As a result, Connors and Rory brought the vehicle to North Olmsted Dodge for repairs. At that time, they learned that the vehicle had been in a "severe accident" that damaged the frame and other portions of the car. They observed that the undercarriage of the vehicle had dents, grass, and dirt. Technicians at North Olmsted Dodge gave Connors and Rory the following written description of the problems with the vehicle:

Vehicle has been damaged from front to rear. 1) Radiator core support. 2) Power steering cooler lines zip-tied and leaking. 3) Oil pan, trans pan, [are] dented and there [are] oil leaks[.] More diagnosis is required. 4) Frame and subframe [are] damaged in several areas. 5) Gas tank scraped but no sign of fuel leaks. * * * There is a confirmed rotational thumping noise * * *. We noted two rims show signs of damage and are possibly bent * * *. Vehicle does drift [and] lead right alignment inspection is required.

         {¶7} Connors brought the car to Spitzer Dodge to obtain additional warranty information about the vehicle. Spitzer Dodge provided her with a CarFax Report indicating that the vehicle had actually been in two accidents that voided the manufacturer's warranty. Connors then returned the car to Target Automotive. Target Automotive agreed to make the repairs and kept the vehicle for a day or two to realign it. When it was returned to Connors, however, the same problems persisted.

          {¶8} Connors also testified that she has paid $1, 400 in repairs for the vehicle, including realignment conducted at North Olmsted Dodge (after the Target Automotive servicing) and radiator repair at a cost of $623. She also purchased a tire for the vehicle. Presently, the air conditioning system leaks water and does not work, the power steering system leaks, and the vehicle continues to shake. Connors testified that, in her opinion as the owner of the vehicle, there has been a 50 percent overall diminution in the value of the car. She also stated that if she had known that the frame of the car had been damaged, she would not have purchased the car.

         {¶9} Connors next testified that during the course of litigation, she learned that Target Automotive obtained the Dodge Avenger in 2013 from Automobile Dealer Exchange Services of America ("ADESA"), an auto auction facility. Documents from this purchase demonstrate that the vehicle had considerable damage and was inoperable.

         {¶10} Connors admitted that the car was sold "as is" and that "potential defects" were listed. The Buyer's Guide containing this information was not posted on the vehicle, however. Connors also admitted that she did not have it inspected prior to purchase, and that she was urged to buy an extended warranty, but she did not do so. She also admitted that she kept the car and did not ask Target Automotive to repair it after the initial alignment. At the time of trial, the car had approximately 75, 000 miles on it.

         {¶11} Michael Bronowski ("Bronowski") of ADESA testified that the used vehicle inspection report for the 2011 Dodge Avenger indicated that it was "a salvage sale." A "frame check" was requested so that the purchaser could check for collision damage that may have damaged the frame. It also had "rail damage, " which to Bronowski may be indicative of frame damage. The vehicle was "inoperable." Photos of the car taken at this time show it with damage.

         {¶12} Condelli testified that he told Connors and Rory that the vehicle had been in a "minor accident, " but he denied telling them that the collision involved the truck transporting the Dodge Avenger and not the car itself. He also claimed that he gave them the entire AutoCheck Report, and not just a small part of it listing one minor accident. Condelli also denied telling them that the vehicle was still under manufacturer's warranty, but he admitted that, in general, manufacturer warranties extend for 36, 000 miles or 5 years. Condelli stated that he is paid on commission, and he was not a licensed car salesman at the time of the purchase. He completed the purchase agreement in the name of Target Automotive's owner, Maged Alzyant ("Maged"). Condelli denied seeing the vehicle in poor condition, but he admitted that Target Automotive had it for over three months before selling it.

         {¶13} Maged testified that he is a certified mechanic and purchases the vehicles for Target Automotive. He purchased the 2011 Dodge Avenger for $5, 530 and had it shipped from Houston. Maged denied seeing the ADESA condition report for the 2011 Dodge Avenger, but he stated that because the vehicle had been in "one minor accident, " the resale price was reduced from $20, 000 to $15, 000. He denied that it was a "salvage sale, " as he does not have a license to sell salvage vehicles. However, he acknowledged that the car needed some exterior work, including a new front bumper.

          {¶14} Momen Alzyant ("Momen"), the general manager of Target Automotive, testified that after receiving a vehicle for resale, Target Automotive looks for "obvious damage" then completes these repairs. Target Automotive sells between 15-20 cars per month, and the business has no written policies regarding compliance with the CSPA. As to whether Target properly performed the alignment after Connors returned the car for servicing, Momen insisted that a front-end alignment was performed.

         {¶15} William Parenti ("Parenti") of North Olmsted Dodge testified that he inspected the vehicle after Connors purchased it and observed considerable damage from the front to the rear. He confirmed the damage with his service manager, then noted problems with the radiator core support, power steering lines that were zip-tied and leaking, oil pan damage, and transmission pan damage. North Olmsted Dodge performed a "purge monitor check" that was an item identified in a recall for the vehicle, but no other warranty coverage was available. When Connors returned the car later with an alignment issue, the dealership performed a four-wheel alignment, rather than a front-end alignment because of the overall condition of the car.

         {¶16} At the close of Connors's evidence, the trial court directed a verdict for Target Automotive on the claim for relief alleging failure to provide a list of repairs. Proceeding with the defense, Maged testified that the vehicle had minor damage when he purchased it. He was aware of one collision involving the vehicle in 2011. He inspected the vehicle and detected only a slight dent. Maged stated that additional damage occurred at the auction.

          {¶17} Maged further testified that no misrepresentations were made to Connors and Rory at the time of purchase. When they returned a few weeks later, she and her father pointed out scratches to the undercarriage of the car, but Maged stated that most cars have such scrapes. Maged also testified that Target Automotive did perform a wheel alignment, and he acknowledged that the vehicle was a still "off a little bit."

         {¶18} At the close of the evidence, Connors moved to amend the pleadings to add additional claims for spoliation of evidence and violation of CSPA for selling a vehicle without a license. The trial court denied the motion as to the spoliation claim, but permitted the amendment to add the ...


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