Court of Appeals of Ohio, Eighth District, Cuyahoga
DEBORAH J. MICHELSON PLAINTIFF-APPELLANT
VOLKSWAGEN AKTIENGESELLSCHAFT, ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
A. Kunselman, Deborah J. Michelson, Miller Goler Faeges
Lapine, L.L.P. ATTORNEYS FOR APPELLANT
D. Kehoe, Kevin P. Shannon Kehoe & Associates,
L.L.C.ATTORNEYS FOR APPELLEES
BEFORE: Blackmon, J., McCormack, P.J., and Keough, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
Deborah J. Michelson ("Michelson") appeals from the
trial court's decision granting Volkswagen
Aktiengesellschaft, et al.'s ("Volkswagen")
motion to dismiss for failure to state a claim upon which
relief can be granted and assigns five errors for our review:
I. The trial court committed reversible error by dismissing
Plaintiff-Appellant's well pled Complaint that alleged
facts sufficient to satisfy Ohio's notice pleading
standard on all counts.
II. The trial court committed reversible error by dismissing
Plaintiff-Appellant's Complaint based on factual
determinations whether Defendant-Appellees were
"suppliers" that engaged in "consumer
transactions" under Ohio's Consumer Sales Practices
Act, Ohio Rev. Code 1345.01, et seq.
III. The trial court committed reversible error by wrongly
determining that Ohio's Deceptive Trade Practices Act,
Ohio Rev. Code 4165.01, et seq. applies only to commercial
IV. The trial court committed reversible error by wrongly
determining that purely economic damages are not recoverable
under Ohio's cause of action for breach of implied
warranty in tort and/or negligent design not sounding in
V. The trial court committed reversible error by failing to
grant Plaintiff-Appellant leave to amend her Complaint
pursuant to Ohio Civil Procedure Rule 15(A), to cure any
perceived pleading deficiencies.
Having reviewed the record and pertinent law, we affirm the
trial court's judgment. The apposite facts follow.
In May 2014, Michelson bought a 2009 Volkswagen CC Sport
("the Vehicle") in Cuyahoga County from an unnamed
seller. In December 2016, when the Vehicle had approximately
90, 000 miles on it, the timing chain system failed,
requiring replacement of the engine at a cost of more than
$7, 000. On March 2, 2017, Michelson filed a complaint
against Volkswagen alleging: 1) unfair and/or deceptive acts
in violation of R.C. 1345.02(A); 2) deceptive trade practices
in violation of R.C. 4165.02; and 3) design or manufacturing
The gist of Michelson's lawsuit, as evidenced by her
complaint, her brief in opposition to Volkswagen's motion
to dismiss, and her appellate briefs, is that "the
Volkswagen Defendants manufactured and distributed a vehicle
that they knew, or reasonably should have known, has serious
manufacturing and design defects, including a defective
timing chain system in the engine that makes the car highly
On May 31, 2017, the court granted Volkswagen's motion to
dismiss under Civ.R. 12(B)(6) for failure to state a claim
upon which relief can be granted. It is from this order that
Michelson appeals. We address Michelson's assigned errors
together when necessary.
of Review - Civ.R. 12(B)(6) Motion to Dismiss
Our standard of review on a Civ.R. 12(B)(6) motion to dismiss
is de novo. A motion to dismiss for failure to state a claim
upon which relief can be granted is procedural and tests the
sufficiency of the complaint. Under a de novo analysis, we
must accept all factual allegations of the complaint as true
and all reasonable inferences must be drawn in favor of the
omitted.) NorthPoint Properties v. Petticord, 179
Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 11
(8th Dist). For a trial court to grant a motion to dismiss
for failure to state a claim upon which relief can be
granted, it must appear "beyond doubt from the complaint
that the plaintiff can prove no set of facts entitling her to
relief." Grey v. Walgreen Co., 197 Ohio App.3d
418, 2011-Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th Dist).
Particular to this case, however, we note that under Civ.R.
12(B)(6), the court does not have to accept Michelson's
legal conclusions as true. Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
("the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
Consumer Sales Practices Act
The Ohio Consumer Sales Practices Act ("CSPA")
provides a remedy to consumers who are subject to unfair or
deceptive practices by suppliers. Pursuant to R.C.
1345.02(A), "[n]o supplier shall commit an unfair or
deceptive act or practice in connection with a consumer
In the case at hand, Michelson alleges that: 1) the supplier
is Volkswagen; 2) the unfair or deceptive act is
Volkswagen's "wrongfully and intentionally"
concealing the "Timing Chain System Defect" from
consumers "for many years, " despite
Volkwagen's actual knowledge of the defect; and ...