[Cite as Tisdale v. Direct Detail,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97503

VENIS TISDALE PLAINTIFF-APPELLANT

vs.

DIRECT DETAIL, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-751015

BEFORE: Keough, J., Sweeney, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: July 19, 2012 FOR APPELLANT

Venis Tisdale, pro se 135 Chestnut Lane Apt. J430 Richmond Heights, OH 44143

ATTORNEY FOR APPELLEES

Ronald A. Skingle 2450 St. Clair Avenue Cleveland, OH 44114 KATHLEEN ANN KEOUGH, J.:

{¶1} Plaintiff-appellant, Venis Tisdale, appeals from the trial court’s judgment

granting the motion for summary judgment of defendants-appellees, Direct Detail and

Washing, d.b.a. Direct Detail, Brian Short, and Jerome Henderson. For the reasons that

follow, we affirm.

I. Facts and Procedural History

{¶2} On March 15, 2011, Tisdale filed suit against appellees seeking $20,000 in

damages for their alleged deception relating to Tisdale’s purchase of a used, 1997

Oldsmobile Regency from Direct Detail on January 14, 2011. Tisdale’s complaint

alleged that prior to purchasing the car, he opened the hood and looked at the engine,

which was clean with no oil leaks. Tisdale asked Henderson, the salesperson, if he could

test drive the car and bring it to an outside mechanic for inspection. Henderson allegedly

told Tisdale he could not take the car to a mechanic but that he could test-drive the car in

the parking lot.

{¶3} After test-driving the car, Tisdale told Henderson that he wanted to buy it.

Short, a manager at Direct Detail, and Henderson then sat down with Tisdale and

calculated the cost of the vehicle with and without a seven-month warranty. The cost

with the warranty was more than without, and Henderson allegedly told Tisdale that he

would not need a warranty because the car was in excellent condition, so Tisdale decided

to buy the car without the warranty. {¶4} Attached to Tisdale’s complaint was the Warranty Disclaimer form he

signed. Under the caption “NOTICE OF VEHICLE SOLD WITHOUT ANY

WARRANTY,” the form stated,

[t]his vehicle is sold without any warranty. The purchaser will bear the entire expense of repairing or correcting any defects that presently exist and/or may occur in the vehicle unless the salesperson promises in writing to correct such defects.

{¶5} A Direct Detail employee then drove the car to Tisdale’s home while

Tisdale drove his rental car home. Tisdale then drove back to Direct Detail in his

just-purchased car and dropped off the employee. As he was driving home, the “check

engine” light in the car came on. Tisdale’s complaint alleged that he took the car to two

repair shops, both of which informed him that there were numerous and significant

problems with the car, including a defective lower intake manifold gasket, that needed

repair.

{¶6} Tisdale brought the car back to Direct Detail, and Short allegedly told him

that Direct Detail would repair it free of charge. However, the “check engine” light

immediately came on again when Tisdale drove the car home after it was repaired.

Tisdale’s complaint alleged that he brought the car back to Direct Detail several times for

repairs because the “check engine” light kept coming on, but each time, instead of fixing

the problem, Direct Detail’s mechanics would simply “clear the codes” to make the light

go off and then tell him the car was fixed. The “check engine” light would come on

again, however, each time Tisdale drove the car home. The car also stalled several times

as Tisdale was driving it, requiring that it be towed. Eventually, when Tisdale kept complaining to Direct Detail about the car, Short informed him that he could not help him

any further.

{¶7} Tisdale then filed suit, alleging that appellees had failed to disclose and

remedy the significant defects with the vehicle, in violation of Ohio’s Consumer Sales

Practices Act. Specifically, Tisdale alleged that appellees violated R.C. 1345.02 and

1345.03, which prohibit unfair, deceptive, and unconscionable acts or practices in

connection with consumer transactions. Tisdale also alleged that appellees violated R.C.

1345.71 through 1345.78 by selling him a nonconforming vehicle.

{¶8} Direct Detail, Short, and Henderson filed a motion for summary judgment,

in which they argued that Tisdale had purchased the vehicle “as is” without any

warranties and, therefore, they could not be held liable for failing to disclose or repair any

defects in the vehicle. Appellees argued further that R.C. 1345.71 through 1345.78

apply only to manufacturers of new vehicles and hence are not applicable to them.

Attached to appellees’ motion were copies of the “As Is” Warranty Disclaimer Form, a

Buyer’s Guide, the Bill of Sale, and the Retail Installment Agreement related to the

transaction.

{¶9} The trial court subsequently held a hearing regarding appellees’ motion.

At the hearing, Tisdale asserted that before selling him the car, appellees had cleaned the

engine around the leaking gasket and then spray-painted around the gasket to cover up the

leak. He produced no evidence to support this claim, however. Tisdale also argued that

when he brought the car to Direct Detail for repair after he had purchased it, in addition to not fixing the car, appellees siphoned gas out of the tank and returned the car to him with

a nearly empty gas tank. He produced no evidence to support this claim. Finally, Tisdale

argued that Short had promised to repair the car free of charge but did not do so, in

violation of the Consumer Sales Practices Act. Tisdale admitted, however, that he had

inspected the car before buying it and that he purchased the vehicle “as is,” without any

warranties.

{¶10} The trial court subsequently granted appellees’ motion for summary

judgment. This appeal followed.

II. Analysis

{¶11} Civ.R. 56(C) provides that summary judgment is appropriate when (1) there

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) after construing the evidence most favorably for the party against

whom the motion is made, reasonable minds can reach only a conclusion that is adverse

to the nonmoving party. Zivich v. Mentor Soccer Club, Inc.,

,

(1998); Temple v. Wean United, Inc.,

,

(1977). We review the trial court’s judgment de novo, using the same

standard that the trial court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co.,

,

(1996).

{¶12} Under R.C. 1302.29(C)(1), “unless the circumstances indicate otherwise, all

implied warranties are excluded by expressions like ‘as is,’ ‘with all faults,’ or other

language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.” Furthermore, when two

parties have executed a written contract that they both agree is an accurate and complete

expression of their agreement, evidence of prior agreements and negotiations will not be

admitted to vary or contradict the written contract. Ed Schory & Sons v. Soc. Natl. Bank,

,

(1996); R.C. 1302.05.

{¶13} Here, Tisdale alleged that he was deceived by appellees’ failure to disclose

the significant defects with the car before he purchased it and to fix the problems with the

car after he bought it. But he admitted that he signed an “As Is” Warranty Disclaimer

form, which very specifically stated that he was buying the car “as is” and that he would

be responsible for the cost of repairing any problems or defects that existed at the time he

bought the car or that occurred after its purchase. In addition, the Buyer’s Guide

executed by Tisdale also indicates that the vehicle was purchased “as is” without any

warranty.

{¶14} These documents, along with the Bill of Sale and Retail Installment

Agreement, constitute the final, written agreement of the parties. Accordingly, evidence

of any alleged oral representations by appellees that would vary the terms of the contract

is barred. Ed Schory & Sons at 440; R.C. 1302.05. Furthermore, Tisdale produced no

written document to vary the terms of the “As Is” Warranty Disclaimer. Therefore, as a

matter of law, appellees cannot be held liable under R.C. 1345.02 and 1345.03 for failing

to disclose and repair any defects in the car. In addition, because appellees are not

manufacturers and did not sell Tisdale a new car, they cannot be held liable under R.C. 1345.71 through 1345.78, which apply only to manufacturers of new vehicles.

Accordingly, we find that the trial court did not err in granting appellees’ motion for

summary judgment.

{¶15} In his first assignment of error, Tisdale contends that the trial court erred in

granting summary judgment to appellees, however, because they admitted liability.

Tisdale bases this argument on defense counsel’s agreement with the trial judge’s

statement at the hearing on the motion for summary judgment that “the underlying facts

are not in dispute.” Tisdale misconstrues the meaning of this statement.

{¶16} Defense counsel’s agreement that “the underlying facts are not in dispute”

was not an admission of liability but an acknowledgement that appellees did not dispute

what happened, even though Tisdale’s claims failed as a matter of law. A reading of the

record demonstrates that appellees’ summary judgment motion argued that even if there

were defects with the car when Tisdale bought it, and even if appellees did not fix the car

free of charge after its purchase, as Tisdale alleged in his complaint, the “As Is” warranty

disclaimer precluded any recovery by Tisdale. In other words, even if the underlying

facts were as Tisdale alleged, appellees were not liable for any violation of the Consumer

Sales Practices Act.

{¶17} In his second assignment of error, Tisdale contends that the trial court erred

in granting appellees’ motion for summary judgment because Short and Henderson

prevented him from taking the car to a mechanic for inspection before he purchased it.

Tisdale’s argument is without merit; he could have (and apparently should have) told Short and Henderson that he would not buy the vehicle without an independent

inspection. As discussed above, by signing the “As Is” Warranty Disclaimer, Tisdale

agreed that he would pay for any necessary repairs to the car, even without an

independent inspection and even if it needed repair when he bought it.

{¶18} In his third assignment of error, Tisdale argues that the trial court erred in

granting summary judgment to appellees because Short told him after he bought the car

that Direct Detail would fix it for him free of charge and then did not do so. Even if this

were true, Tisdale’s signature on the “As Is” Warranty Disclaimer and his

acknowledgement that he would pay for any repairs to the car preclude any recovery

under the Consumer Sales Practices Act for Direct Detail’s failure to fix the car.

{¶19} In his fourth assignment of error, Tisdale argues that the court’s judgment in

favor of appellees was against the manifest weight of the evidence because appellees did

not present any evidence at the hearing on their motion for summary judgment. But

appellees attached the “As Is” Warranty Disclaimer, the Buyer’s Guide, the Bill of Sale,

and Retail Installment Agreement to their motion for summary judgment. This evidence

demonstrated that Tisdale’s claims under the Consumer Sales Practices Act failed as a

matter of law. Accordingly, the trial court’s judgment was not against the weight of the

evidence.

{¶20} In his fifth assignment of error, Tisdale contends that the trial court’s

judgment was in error because it “prejudiced” him. As discussed above, we find no error

with the trial court’s judgment. {¶21} Finally, in his sixth assignment of error, Tisdale contends that the trial judge

should have recused himself from the case because the judge’s law clerk allegedly “sided

with” appellees at the case management conference. We find no evidence in the record

to support this assertion.

{¶22} Appellant’s assignments of error are therefore overruled and the trial court’s

judgment is affirmed.

{¶23} Affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

JAMES J. SWEENEY,, P.J., and KENNETH A. ROCCO, J., CONCUR