[Cite as LaBounty v. Big 3 Automotive,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

Edward LaBounty Court of Appeals No. OT-18-022

Appellee Trial Court No. 16CV99

v.

Big 3 Automotive, et al. DECISION AND JUDGMENT

Appellants Decided: May 17, 2019

*****

John A. Coppeler, for appellee.

Jason L. Carter, for appellants.

*****

ZMUDA, J.

I. Introduction

{¶ 1} Appellants, Big 3 Automotive and Rick Trunkett,1 appeal the judgment of

the Ottawa County Court of Common Pleas, finding in favor of appellee, Edward

1 Trunkett is one of three co-owners of Big 3 Automotive. LaBounty, on his claims for breach of contract and misrepresentation against Big 3

Automotive, dismissing appellee’s remaining claims as well as appellants’ counterclaims,

and awarding damages to appellee in the amount of $75,253.60.

A. Facts and Procedural Background

{¶ 2} This matter originated upon the filing of appellee’s complaint on April 4,

2016. In his complaint, appellee alleged claims against Big 3 Automotive for breach of

contract, negligence, breach of express and implied warranties, misrepresentation, and

violations of the Consumer Sales Practices Act. Additionally, appellee brought a claim

of misrepresentation against Trunkett. These claims stemmed from issues that arose

during Big 3 Automotive’s work on appellee’s performance boat engines.

{¶ 3} Three weeks after the complaint was filed, appellants moved the trial court

to dismiss the action for improper venue under Civ.R. 12(B). In the motion, appellants

argued that the matter was improperly brought in Ottawa County because Big 3

Automotive was located in Medina County, and the transaction that was the subject of the

litigation also took place in Medina County. However, because some of the events that

gave rise to the complaint were alleged to have occurred in Ottawa County, the trial court

denied appellants’ motion to dismiss. Thereafter, appellants filed a motion to transfer

venue to Medina County, which the trial court likewise denied.

{¶ 4} On October 21, 2016, appellants filed their answer, in which they also

asserted counterclaims against appellee for breach of contract, conversion, unjust

enrichment, and fraudulent misrepresentation. Thereafter, the matter proceeded through

pretrial discovery and motion practice. On September 15, 2017, the trial court issued its

2. final settlement pretrial order in which it indicated that appellants had not yet paid the

required jury deposit, and thus reserved the right to strike their jury demand.

{¶ 5} On September 28, 2017, the trial court issued an order sua sponte striking

appellants’ jury demand under Loc.R. 20.04, which requires jury deposits to be paid no

later than 14 days following the case management conference. According to the docket,

the case management conference order was issued on April 26, 2017. Appellants’ jury

deposit was not paid until September 26, 2017, five months after the case management

conference.

{¶ 6} On October 2, 2017, the matter proceeded to a bench trial. At trial, it was

established that appellee’s relationship with appellants began in 2013, when appellee

contacted Big 3 Automotive and requested service of a Holley fuel injection system that

was installed on his 1995 Hustler twin-engine boat. Appellee became aware that Big 3

Automotive was a Holley dealer when he found the company’s information listed on

Holley’s website.2

{¶ 7} During the 2013 boating season, Big 3 Automotive made the necessary

adjustments to the Holley fuel injection system on appellee’s boat, resulting in proper

performance from the boat’s General Motors engines. Appellee was invoiced by Big 3

Automotive, and he subsequently paid the charges in full.

2 Although Big 3 Automotive was a Holley dealer, Trunkett testified at trial that Big 3 Automotive had no experience building marine engines. Trunkett indicated that appellee was aware of Big 3 Automotive’s lack of marine experience, but suggested that “[Big 3 Automotive] could probably get into the marine market.” 3. {¶ 8} At the end of the 2013 boating season, appellee contacted Trunkett to inquire

about Big 3 Automotive “freshening up” the boat’s engines in order to improve their

performance and ensure that the engines were in good operating condition for the 2014

boating season. In order to improve performance, as measured by an increase in the

engines’ horsepower, Trunkett suggested supercharging the engines and increasing their

displacement.3 Trunkett testified that he understood that appellee also wanted Big 3

Automotive to replace any parts that were worn excessively.

{¶ 9} Following several conversations with Trunkett, appellee agreed to have Big

3 Automotive freshen up his engines at an approximate cost of $15,000 to $20,000. To

that end, appellee removed the engines from the boat and delivered them to Big 3

Automotive in November 2013. At that time, Trunkett understood that appellee wished

to have the work completed by the following spring, in time for the 2014 boating season.

Trunkett testified that he made no guarantees or promises to have the work done before

the 2014 boating season. However, appellee testified that he and Trunkett had discussed

having the engines reinstalled on his boat “before the ice broke” in 2014.

{¶ 10} Once the engines arrived at Big 3 Automotive’s shop, the engines were

taken apart. At this point, it was discovered that one of the engines had a crack in its

block. Trunkett informed appellee of the cracked block. Because General Motors no

longer carried a replacement engine block, Trunkett recommended repairing the engine

3 Trunkett explained that an engine’s displacement is increased by increasing the stroke of the engine and/or the bore size of the engine. 4. with a new Dart engine block. Appellee desired to have matching blocks, and therefore

decided to replace both General Motors blocks with Dart blocks.

{¶ 11} During the discussions concerning the replacement of the engine blocks,

Trunkett provided appellee with an estimate as to the increase in engine horsepower that

could be expected as a result of increasing the engine’s displacement from 540 cubic

inches to 621 cubic inches and upgrading the camshafts. In their original state, the

engines each produced approximately 700 horsepower. The testimony at trial provided

conflicting accounts as to how much additional horsepower would be obtained following

Big 3 Automotive’s work on the engines. Trunkett testified that he informed appellee

that the performance would improve by “up to a hundred horsepower.” Appellee,

however, testified that Trunkett told him that the engines would put out “at least a

hundred horsepower or more.”

{¶ 12} In the months that followed, Big 3 Automotive performed a variety of work

on appellee’s engines. According to Trunkett, one of the engines (the “port engine”)

experienced three failures. The first failure, a broken valve, was characterized by

Trunkett as a “catastrophic failure” that caused significant damage to the engine. Big 3

Automotive attempted to repair the damage that was caused by the broken valve by

replacing a rod, a piston, and a cylinder head. Additionally, Big 3 Automotive performed

rewiring work on the engines.

{¶ 13} After repairing the damage caused by the broken valve, Big 3 Automotive

took the engines to Edgewater Marina for testing. During testing, the valve on the port

5. engine that was repaired failed a second time. The valve was repaired, and the engines

were taken to Lakefront Marina for testing.

{¶ 14} While at Lakefront Marina, Trunkett attempted to test the engines. After

starting the engines, Trunkett noticed that the port engine was misfiring. Once appellee

arrived at the marina, Trunkett informed appellee that he was unsure why the port engine

failed for a third time and that he needed to get a second opinion. Trunkett indicated that

he would need to take the engines to Ison Racing, a company with which he had a

relationship. Appellee responded that he wanted to consider the matter before making a

decision.

{¶ 15} Thereafter, appellee researched Ison Racing, and determined that he was

not comfortable taking the engines there because the company was primarily experienced

in automotive engines. Instead of Ison Racing, appellee wanted to take the engines to

Sterling Performance, a Michigan-based company that specializes in performance marine

engines. Trunkett responded that he would not pay for appellee to take the engines to

Sterling Performance. Further, Trunkett told appellee that he was “washing [his] hands

of it if [appellee] took it [to] someone else.”

{¶ 16} Sometime later, appellee informed Trunkett that he would be taking the

engines to Sterling Performance. Trunkett was invited to be present at Sterling

Performance to witness the disassembly of the engines, but refused to attend.

{¶ 17} Once at Sterling Performance, the engines were examined by Michael

D’Anniballe. D’Anniballe is the president of Sterling Performance. At trial,

D’Anniballe testified as to his background. D’Anniballe stated that he was educated as a

6. mechanical engineer. D’Anniballe worked as an engineer for McClaren until he was

contacted by Mercury Marine, a marine engine company, and asked to design and build a

race engine. At some point thereafter, D’Anniballe started Sterling Performance.

According to D’Anniballe, Sterling Performance has become the “predominant supplier

for offshore racing worldwide.”

{¶ 18} Upon examination of appellee’s engines, D’Anniballe prepared a written

evaluation and emailed it to appellee on September 11, 2014. In his evaluation of the

port engine, D’Anniballe stated:

We feel that the initial failure of a bent #7 exhaust valve was caused

by a combination of a tight fitting exhaust guide along with the engine

overheating. The overheating is caused by the wrong style thermostat

being installed. * * *

When we disassembled the engine, we found the following problems

that would have led to additional failures later.

A. Pistons sticking .010” out of bore

B. Pistons hitting cylinder heads

C. Compression ratio way [too] high for the iron heads running

pump fuel

D. Poly locks on rocker arms have only marginal engagement on

rocker studs

There are other items that are suspect in our opinion. These items

may or may not cause failure but in the long term would hinder reliability.

7. A. Crankshaft type and stroke

B. Connecting rod type and length

C. Piston type is fine but the layout is not

D. Valve length

E. Pushrod length

After running the 2nd engine we found the base calibration to be

very rough. The CAL relied heavily on the O2 sensors to correct. The

problem with the above is that the system cannot react quickly enough.

This would become evident at idle when trying to shift boat in and out of

gear.

{¶ 19} During his testimony, D’Anniballe elaborated on the issue of engine

overheating, stating that an automotive thermostat was used instead of a marine

thermostat. D’Anniballe explained that a marine thermostat is designed differently than

an automotive thermostat and that an automotive thermostat, which lacks the fluid bypass

present on a marine thermostat, is unable to properly detect the engine’s temperature in

marine applications, leading to overheating. According to D’Anniballe, “the engine

overheats, but the thermostat doesn’t know it.” After disassembling the second engine

(the “starboard engine”), D’Anniballe observed that it was built in a similar fashion to the

port engine. Ultimately, D’Anniballe testified that both of appellee’s engines were

improperly configured, making them unable to endure the type of extended, high-load

marine application for which they were being used.

8. {¶ 20} In light of D’Anniballe’s findings, appellee directed Sterling Performance

to rebuild the engines. The engines were then rebuilt by Sterling Performance at a cost of

$41,956.53. An invoice from Sterling Performance was introduced at trial, which details

the work that was performed on the engines during the rebuilding process. D’Anniballe

testified that the work contained in the invoice was “necessary to change the engine and

reconfigure it into a fashion that it would survive for [appellee’s] intended usage.”

Further, D’Anniballe stated that he utilized whatever existing components that remained

suitable during the rebuild process, and supplemented the existing components with new

parts. Appellee indicated during his testimony that the parts that were installed and later

removed from the engines were offered to, and refused by, Trunkett. Appellee further

stated that the parts are currently stored in his garage, and are of no value to him.

{¶ 21} After D’Anniballe testified as to the necessity of the work performed by

Sterling Performance, appellee’s counsel asked whether D’Anniballe had an opinion, to a

reasonable degree of professional certainty, whether or not the engines were suitable for

use in a performance boat upon their arrival from Big 3 Automotive. Appellants’ counsel

objected, stating as his basis: “Foundation for what he is trying to elicit as expert

testimony with respect to the status of the engines.” The trial court overruled the

objection, noting that D’Anniballe’s foundation for his opinion as to the condition of the

engines was provided throughout his testimony up to that point. Thereafter, D’Anniballe

testified that, in his opinion, appellee’s engines were not suitable for use in a performance

boat when they arrived at Sterling Performance. On redirect examination, D’Anniballe

9. further provided his opinion that, to a reasonable degree of professional certainty, the

starboard engine would have eventually failed, just as the port engine had failed, due to

the fact that it was configured in a similar fashion to the port engine.

{¶ 22} Following the changes made by Sterling Performance to the engines, which

made the engines suitable for the prolonged period of operation inherent in marine

applications, the horsepower output from the engines decreased. Consequently, appellee

testified that he returned to Sterling Performance to have further work done on the

engines in order to “achieve the horsepower that [he] thought [he] was getting originally

[from Big 3 Automotive].” Ultimately, Sterling Performance installed superchargers on

the engines at a cost of $44,578.20, increasing the horsepower of each engine by between

220 and 230 horsepower. An invoice detailing these charges, dated April 21, 2016, was

admitted at trial.

{¶ 23} At the conclusion of the trial, the court took the matter under advisement

and ordered the parties to submit proposed findings of fact and conclusions of law. On

May 31, 2018, the court issued its decision in which it found in appellee’s favor on his

claims for breach of contract and misrepresentation against Big 3 Automotive. The court

rejected appellee’s remaining claims, and found in favor of appellee on appellants’

counterclaims.

B. Assignments of Error

{¶ 24} Appellants have filed a timely notice of appeal, and now assert the

following assignments of error:

10. FIRST ASSIGNMENT OF ERROR: Whether the lower court’s

ruling that Big 3 breached its contract with LaBounty is against the

manifest weight of the evidence.

SECOND ASSIGNMENT OF ERROR: Whether the lower court

erred when it failed to apply Big 3’s warranty disclaimer to LaBounty’s

claims for recovery against the manifest weight of the evidence.

THIRD ASSIGNMENT OF ERROR: Whether the lower [court]

erred when ruling Big 3 failed to cure the defects in the “port” engine as

against the manifest weight of the evidence.

FOURTH ASSIGNMENT OF ERROR: Whether the lower court

erred when finding Big 3’s actions amounted to tortious misrepresentation

against the manifest weight of the evidence.

FIFTH ASSIGNMENT OF ERROR: Whether the lower court erred

when determining the damage award against Big 3 against the manifest

weight of the evidence.

SIXTH ASSIGNMENT OF ERROR: Whether the lower court

abused its discretion when determining the admissibility of various

exhibits.

SEVENTH ASSIGNMENT OF ERROR: Whether the lower court

abused its discretion when treating the testimony of [D’Anniballe] as expert

testimony.

11. EIGHTH ASSIGNMENT OF ERROR: Whether the lower court

abused its discretion when denying Big 3’s request for change of venue and

a trial by jury.

[NINTH] ASSIGNMENT OF ERROR: Whether the lower court’s

dismissal of the claims raised by Big 3 was in error and against the manifest

weight of the evidence.

TENTH ASSIGNMENT OF ERROR: Whether the lower court

abused its discretion when it failed to give proper weight to the presence of

witness tampering in the trial process.

{¶ 25} For ease of discussion, we will address appellants’ assignments of error out

of order. We will begin by addressing the preliminary procedural issues appellants raise

in their eighth assignment of error. We will then examine appellants’ assertion of witness

tampering found in their tenth assignment of error. Thereafter, we will address the

evidentiary issues raised in appellants’ sixth and seventh assignments of error. Lastly, we

will address appellants’ remaining assignments of error, which are based upon a claim

that the trial court’s decision was against the manifest weight of the evidence.

II. Analysis

A. Venue and Procedural Issues

{¶ 26} In appellants’ eighth assignment of error, they argue that the trial court

abused its discretion by denying their motion for a change of venue and striking their jury

demand.

12. {¶ 27} “The decision to grant or deny a motion to change venue is within the

sound discretion of the trial court and will not be disturbed on appeal absent an abuse of

discretion.” Sheet Metal Workers Local 98, Pension Fund v. Whitehurst, 5th Dist. Knox

No. 03 CA 29,

, citing Grenga v. Smith, 11th Dist. Trumbull No.

2001-T-0040,

. An abuse of discretion connotes that the trial court’s

attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶ 28} The proper venue in a civil action is determined by reference to Civ.R.

3(C), which provides, in relevant part:

Any action may be venued, commenced, and decided in any court in

any county. * * * Proper venue lies in any one or more of the following

counties:

(1) The county in which the defendant resides;

(2) The county in which the defendant has his or her principal place

of business;

(3) A county in which the defendant conducted activity that gave

rise to the claim for relief;

***

(6) The county in which all or part of the claim for relief arose

* * *.

13. {¶ 29} The Supreme Court of Ohio has held that these provisions “are on equal

status, and any court specified therein may be a proper and initial place of venue.”

Morrison v. Steiner,

,

(1972). Plaintiff may choose

where to bring the action if any of the counties specified in Civ.R. 3(C)(1) through (11)

are a proper forum under the facts of the case. Varketta v. Gen. Motors Corp.,

,

(8th Dist. 1973).

{¶ 30} In support of their contention that the trial court abused its discretion in

denying their motion to transfer venue, appellants cite Rose v. Cochran, 2d Dist.

Montgomery No. 25498,

, for the proposition that venue in this case

should have been chosen in the county in which they reside (Medina County), rather than

appellee’s county of residence. Our review of Rose reveals that it is distinguishable from

the case at bar.

{¶ 31} In Rose, the Second District found that venue was improper in Ross

County, where the plaintiff resided. Instead, the court found that the county in which the

defendant resides (Montgomery County) should have been selected over Ross County

under Civ.R. 3 because “[t]he case had no other ties to Ross County * * *.”

{¶ 32} Unlike Rose, the present case has ample ties to Ottawa County. For

example, the verbal contracts that were formed in this case were agreed upon in Ottawa

County. Further, the third failure of the port engine occurred in Ottawa County, which is

where Trunkett informed appellee that he would need to get a second opinion, prompting

appellee to take the engines to Sterling Performance. Given appellants’ activity in

Ottawa County, and in light of the fact that part of appellee’s claim arose in Ottawa

14. County, we find that Ottawa County was a proper venue under Civ.R. 3(C)(3) and (6),

and the trial court did not abuse its discretion in denying appellants’ request to transfer

venue.

{¶ 33} Next, appellants argue that the trial court abused its discretion in sua sponte

striking their jury demand for failure to timely pay the jury deposit under the trial court’s

local rules.

{¶ 34} Relevant here, Ottawa County Common Pleas Court Local Rule 20.04

provides:

Unless otherwise [o]rdered by this Court, jury deposits shall be paid

no later than 14 days following the Case Management Conference. Failure

to timely pay the jury deposit may result in the jury demand being stricken,

the jury trial date being vacated and the matter rescheduled for bench trial.

{¶ 35} In their brief to this court, appellants fail to reference the foregoing rule or

explain whether their September 26, 2017 remittance of the jury deposit was in

compliance with the rule. Our examination of the record reveals that the case

management conference order in this case was issued on April 26, 2017. Thereafter, the

trial court informed appellants on September 15, 2017, that it reserved the right to strike

their jury demand. Nonetheless, appellants failed to remit the jury deposit until

September 26, 2017, five months after the case management conference and only six

days before trial, and thus well beyond the 14-day period prescribed under the trial

court’s local rule.

15. {¶ 36} In light of appellants’ untimely payment of the jury deposit, we find that

the trial court did not abuse its discretion in sua sponte striking the jury demand. Skiadas

v. Finkbeiner, 6th Dist. Lucas No. L-05-1094,

; Integrated

Vascular Servs., LLC v. Kuhel, 7th Dist. Columbiana No.

,

. Having already concluded that the trial court did not abuse its discretion in denying

appellants’ request to transfer venue, we find appellants’ eighth assignment of error not

well-taken.

B. Allegations of Witness Tampering

{¶ 37} In appellants’ tenth assignment of error, they argue that the trial court

abused its discretion by failing to give proper weight to their allegations that appellee’s

counsel committed witness tampering by advising D’Anniballe that he did not need to

respond to Big 3 Automotive’s subpoena. According to their brief, this communication

between D’Anniballe and appellee’s counsel “was improper and deserve[s] the attention

of this Court and the lower court.”

{¶ 38} The subpoena at issue was originally filed on October 24, 2016. Receiving

no response to the subpoena, appellants filed a “motion for court order” on February 17,

2017, in which they sought an order of the court directing Sterling Performance to

respond. One week later, the court denied appellants’ motion, explaining that it could not

compel Sterling Performance to comply with the subpoena because it is a Michigan-

based company over which the court had no jurisdiction.4 During cross examination,

4 Appellee did not file a memorandum in opposition to appellants’ motion for court order. 16. appellants asked D’Anniballe why he failed to respond to their subpoena. D’Anniballe

responded that he was informed by appellees’ counsel that he did not need to respond to

the subpoena. No further mention was made of the interaction between D’Anniballe and

appellee’s counsel pertaining to the subpoena, and no motion to strike was made by

appellants’ counsel.

{¶ 39} Having reviewed the record in its entirety, it is clear that appellants failed

to raise the issue of witness tampering in the trial court. Thus, appellants have waived

this argument on appeal. See Robinson v. Mercy St. Vincent Med. Ctr., 6th Dist. Lucas

No. L-17-1102,

, citing Estate of Hood v. Rose,

,

,

(4th Dist.) (“A litigant’s failure to raise an

issue before the trial court waives that party’s right to raise the issue on appeal.”).

{¶ 40} Accordingly, appellants’ tenth assignment of error is not well-taken.

C. Hearsay and the Business Records Exception

{¶ 41} In appellants’ sixth assignment of error, they argue that the trial court

abused its discretion by admitting two invoices, exhibits 16 and 17, at trial without a

proper foundation under Evid.R. 803(6). In response, appellee asserts, as he did before

the trial court, that the invoices were not hearsay under Evid.R. 801(C) and, thus, did not

require the laying of a foundation by a custodian or other qualified witness under Evid.R.

803(6).

{¶ 42} “On appeal, challenged hearsay is subject to de novo review under the

applicable hearsay rule, rather than the more deferential review employed for

discretionary rulings” because “[w]hile there is discretion to admit or exclude relevant

17. evidence, there is no 'discretion' to admit hearsay.” State v. Richcreek,

,

,

(6th Dist.), citing State v. Sutorius,

,

(1st Dist. 1997); and State v. Sorrels,

,

(1st Dist. 1991).

{¶ 43} Here, the evidence contained in exhibits 16 and 17 consisted of invoices

from Art Cook Marine Services, Inc. and Orlandi Performance LLC, respectively, which

detailed expenses incurred by appellee for the removal and reinstallation of the engines.

At trial, these exhibits were used to support appellee’s testimony that he paid $4,417.37

to Art Cook Marine Services, Inc. and $7,879.70 to Orlandi Performance LLC. As a

threshold issue, we must determine whether appellee is correct in his assertion that

exhibits 16 and 17 were not hearsay.

{¶ 44} Under Evid.R. 801(C), hearsay is defined as “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.”

{¶ 45} In League v. Collins, 12th Dist. Butler No. CA2013-03-041, 2013-Ohio-

3857, the Twelfth District addressed the question of whether an attorney’s invoice, which

detailed $965 of legal fees incurred by League in defense of a motion for contempt,

amounted to hearsay. There, the court held that the invoice was hearsay because it was

used “to prove, in part, the truth of the matters asserted within it; that League incurred

$965 in attorney fees in defense of the contempt motion.” Id. at ¶ 10.

{¶ 46} Likewise, the invoices contained in exhibits 16 and 17 were used by

appellee to prove not only that he incurred expenses for work performed by Art Cook

18. Marine Services, Inc. and Orlandi Performance LLC, but also that the cost of the work,

which he subsequently paid, was as specified on the invoices. Because appellee offered

the invoices to prove the truth of the matters asserted therein, namely that the work was

performed and the cost incurred, the invoices constituted hearsay.

{¶ 47} Appellee cites our decision in Rizzen v. Spaman,

,

(6th Dist. 1995), to support his assertion that the invoices in this case were not

hearsay. However, we find Rizzen distinguishable because, in that case, the plaintiff

testified that she spent over $50,000 on attorney fees.

. That testimony was

supported by attorney invoices and copies of checks, which we deemed were not hearsay

under the facts of that case.

{¶ 48} By contrast, appellee provided no testimony in this case as to the amount of

money he paid to Art Cook Marine Services, Inc. and Orlandi Performance LLC. Rather,

appellee relied exclusively upon exhibits 16 and 17 to establish the amount paid and that

the work was performed. When addressing the costs contained in exhibit 16, the

following exchange took place:

Q. Did you receive this invoice from Art Cook Marine Services?

Yes.

Q. Did you pay it?

I did. It says paid in full.

{¶ 49} Similarly, appellee failed to provide any admissible testimony as to the cost

of the work provided by Orlandi Performance LLC. Without any independent testimony

or other admissible evidence establishing the work performed or appellee’s payments to

19. Art Cook Marine Services, Inc. and Orlandi Performance LLC, it is clear that appellee

was introducing the invoices in order to substantiate the validity of his claim that he had

paid $4,417.37 to Art Cook Marine Services, Inc. and $7,879.70 to Orlandi Performance

LLC. The exhibits, having been offered to prove the truth of the matters asserted therein

and support appellee’s claim of damages, are clearly hearsay, and are therefore

inadmissible under Evid.R. 802 unless they fall within one of the hearsay exceptions.

{¶ 50} Evid.R. 803 provides certain exceptions to the rule against hearsay.

Business records are among these exceptions.

{¶ 51} Relevant here, and as argued by appellee, Evid.R. 803(6) provides, in

pertinent part:

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

(6) Records of regularly conducted activity. A memorandum, report,

record, or data compilation, in any form, of acts, events, or conditions,

made at or near the time by, or from information transmitted by, a person

with knowledge, if kept in the course of a regularly conducted business

activity, and if it was the regular practice of that business activity to make

the memorandum, report, record, or data compilation, all as shown by the

testimony of the custodian or other qualified witness or as provided by Rule

901(B)(10), unless the source of information or the method or

circumstances of preparation indicate lack of trustworthiness.

20. {¶ 52} The Supreme Court of Ohio has held that the business record exception “is

based on the assumption that the records, made in the regular course of business by those

who have a competent knowledge of the facts recorded and a self-interest to be served

through the accuracy of the entries made and kept with knowledge that they will be relied

upon in a systematic conduct of such business, are accurate and trustworthy.” Weis v.

Weis,

,

(1947). In order to lay a proper

foundation for business records under Evid.R. 803(6), “the testifying witness must

possess a working knowledge of the specific record-keeping system that produced the

document.” State v. Davis,

,

(1991).

{¶ 53} In this case, appellee failed to lay a proper foundation for the invoices

contained in exhibits 16 and 17. Indeed, appellee was the only witness to testify

concerning the invoices. Appellee was not the custodian or a qualified witness because

he did not possess any knowledge whatsoever as to the record-keeping system that

produced the invoices. Without a proper foundation under Evid.R. 803(6), the trial court

erred in admitting exhibits 16 and 17 into evidence. See League, supra, 12th Dist. Butler

No. CA2013-03-041,

(attorney fee invoice was not

authenticated by League’s attorney and was therefore inadmissible under business

records exception). By extension, we find that the trial court’s award of damages for the

payments made to Art Cook Marine Services, Inc. and Orlandi Performance LLC

(totaling $12,297.07) must be vacated, as it was based exclusively upon the erroneously

admitted invoices contained in exhibits 16 and 17.

{¶ 54} Accordingly, appellants’ sixth assignment of error is well-taken.

21. D. Expert Testimony

{¶ 55} In appellants’ seventh assignment of error, they argue that the trial court

abused its discretion by treating D’Anniballe’s testimony as expert testimony.

{¶ 56} Trial courts have broad discretion in determining the admissibility of expert

testimony. State v. Adams,

,

,

, ¶ 88.

Thus, an appellate court will only reverse a ruling admitting such testimony if the trial

court abused its discretion. State v. McKelton,

,

,

.

{¶ 57} Evid.R. 702 governs the admissibility of expert testimony, and permits

such testimony so long as the following criteria are satisfied:

(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the

testimony; [and]

(C) The witness’ testimony is based on reliable scientific, technical,

or other specialized information.

{¶ 58} Appellants raise two issues under Evid.R. 702. First, appellants argue that

the trial court improperly allowed D’Anniballe to testify without first qualifying him as

an expert under Evid.R. 702(B). In response, appellee asserts that D’Anniballe was

qualified to provide expert testimony in this case based upon his 31 years of experience

22. designing, developing, and testing marine engines for performance boats, as outlined in

the curriculum vitae that was admitted into evidence at trial.

{¶ 59} Our review of the record in this case reveals that appellee did not ask the

trial court to formally recognize D’Anniballe as an expert prior to eliciting his opinion

testimony. “While it is preferable for the trial court to explicitly find that a witness

qualifies as an expert, where the testimony of a witness relates to knowledge beyond the

scope of a lay person, we can infer from the record that the trial court found the witness

to be an expert, and the question thus becomes whether the witness was properly

qualified as an expert.” State v. Michalek, 5th Dist. Stark No. 2010CA00186, 2011-

Ohio-1628, ¶ 34. In order to qualify as an expert, an expert must “demonstrate some

knowledge on the particular subject superior to that possessed by an ordinary juror.”

Scott v. Yates,

,

(1994), citing State Auto Mut. Ins.

Co. v. Chrysler Corp.,

,

(1973).

{¶ 60} Here, D’Anniballe testified regarding his background as a mechanical

engineer, and explained that he had extensive experience modifying performance marine

engines for Mercury Marine and Sterling Performance. This experience, which was

further outlined in D’Anniballe’s curriculum vitae, informed D’Anniballe’s opinion that

the engines, as modified by Big 3 Automotive, were unsuitable for use in appellee’s

performance boat.

{¶ 61} In light of D’Anniballe’s knowledge of performance marine engines, which

clearly exceeded that of an ordinary juror given his experience, we find that D’Anniballe

23. was qualified to testify as an expert in this matter under Evid.R. 702(B). See Chrysler

(finding that a mechanic who had seen ruptured brake hoses on thirty occasions was

qualified to testify as to a defect in a brake hose).

{¶ 62} Second, appellants argue that the trial court erred in allowing D’Anniballe

to testify as an expert without first inquiring into the reliability of his opinion testimony

under Evid.R. 702(C). Appellants take specific issue with the trial court’s failure to

engage in a Daubert analysis before permitting D’Anniballe to testify. Notably,

appellants made no mention of Daubert in support of their objection before the trial

court, nor did they seek to voir dire D’Annniballe as to his qualifications. Nonetheless,

appellants contend that a Daubert analysis was required because D’Anniballe’s testimony

was not supported by specific literature. Appellee responds that D’Anniballe’s testimony

was admissible because it was based on reliable technical or specialized information.

Upon consideration, we find that appellants’ argument misconstrues the application of

Daubert in this case.

{¶ 63} In Daubert v. Merrell Dow Pharmaceuticals, Inc.,

,

,

(1993), the United States Supreme Court listed several factors to

be considered in determining the reliability of scientific evidence. These factors include

(1) whether the theory or scientific technique has been tested, (2) whether the theory or

technique has been subject to peer review or publication, (3), whether the method has a

known or potential rate of error, and (4) whether the method has gained general

24. acceptance in the scientific community.

. The Ohio Supreme Court

adopted the Daubert standard in Miller v. Bike Athletic Co.,

,

(1998).

{¶ 64} Thereafter, the United States Supreme Court clarified that the Daubert

standard of evidentiary reliability extends not only to scientific testimony, but to all

expert testimony. Kumho Tire Co., Ltd. v. Carmichael,

,

,

(1999). The reliability inquiry is a flexible one, and the specific

factors enumerated in Daubert do not all necessarily apply in every instance.

at 150-

151. Thus, scientific studies are not the exclusive means to establish reliability under

Daubert. Rather, “the relevant reliability concerns may focus upon personal knowledge

or experience.”

.

{¶ 65} Here, the reliability inquiry focused on D’Anniballe’s personal knowledge

or experience, which he explained in detail prior to rendering an opinion regarding the

condition of appellee’s engines. As noted above, the factors outlined in Daubert, and

cited by appellants in their brief, do not apply in every case. D’Anniballe’s testimony

was not based upon the sort of novel scientific theories or methods that would be subject

to peer review or need to be carefully scrutinized by a trial court under Daubert.

{¶ 66} Given the personal knowledge gleaned from D’Anniballe’s experience

developing and testing performance marine engines, we find that D’Anniballe’s expert

testimony was reliable under Evid.R. 702(C). Having already concluded that

D’Anniballe was properly qualified under Evid.R. 702(B), we find appellants’ seventh

assignment of error not well-taken.

25. E. Manifest Weight

{¶ 67} In their first, second, third, fourth, fifth, and ninth assignments of error,

appellants argue that the trial court’s decision was against the manifest weight of the

evidence. When reviewing for manifest weight:

The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

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

conviction 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 conviction. State v.

Thompkins,

,

(1997).

{¶ 68} As a preliminary matter, we note that the contract at issue in this case is a

hybrid contract involving both goods and services. Thus, we must address whether this

appeal is governed by common law contract principles or by Article Two of the Uniform

Commercial Code (“UCC”), as codified in Chapter 1302 of the Ohio Revised Code. To

do so, we utilize the “predominant purpose” test, which was explained by the court in

Allied Indus. Serv. Corp. v. Kasle Iron & Metals,

,

(6th Dist. 1977), as follows:

The test for the inclusion in or the exclusion from sales provisions

[of Article Two of the UCC] is whether the predominant factor and purpose

of the contract is the rendition of service, with goods incidentally involved,

26. or whether the contract is for the sale of goods, with labor incidentally

involved.

.

{¶ 69} Here, the contract is predominantly one for goods. Appellee solicited the

services of Big 3 Automotive with an interest in having his engines “freshened up,”

which was understood by the parties to mean that the performance of the engines would

be improved with the addition of performance parts. As the matter developed, it was

discovered that one of the engines had a cracked block, which required the installation of

even more parts than were initially projected. Indeed, of the total invoice price of

approximately $27,000, over $21,000 of the cost was attributable to parts. Thus, we find

that Big 3 Automotive’s installation of the parts was incidental to the sale of the

performance parts. In other words, it was the parts (which are goods), and not the

installation services, that appellee was ultimately seeking in this agreement. As such,

Article Two of the UCC applies. See Allied Erecting & Dismantling Co. v. Ohio Edison

Co.,

,

(7th Dist.) (finding that Article Two of the UCC

applies to a contract obligating Ohio Edison to design and construct an electrical

substation because the predominant purpose of the contract was to secure a working

substation, not to utilize Edison’s design and construction expertise).

1. Breach of Contract

{¶ 70} In appellants’ first assignment of error, they argue that the trial court’s

determination that Big 3 breached its contract with appellee was against the manifest

weight of the evidence. Relatedly, appellants argue in their third assignment of error that

27. the trial court’s judgment was against the manifest weight of the evidence because the

record reveals that appellee prevented them from exercising their right to cure the defect

in the port engine.

{¶ 71} In order to establish a claim for breach of contract, appellee must prove by

a preponderance of the evidence: “(1) a contract existed, (2) [appellee] fulfilled his

obligations, (3) [appellants] failed to fulfill [their] obligations, and (4) damages resulted

from that failure.” Bank of New York Mellon v. Lewis, 6th Dist. Erie No. E-13-051,

, citing Blake Homes, Ltd. v. FirstEnergy Corp.,

,

,

(6th Dist.).

{¶ 72} In the present case, appellants do not dispute that a contract existed

between the parties. Instead, appellants argue that there was no evidence to establish that

they failed to fulfill their obligations under the terms of the contract with respect to the

starboard engine, except for D’Anniballe’s “unsupported contention” that the starboard

engine would have failed in the same manner as the port engine. In support, appellants

note that the starboard engine functioned properly prior to being removed and taken to

Sterling Performance.

{¶ 73} In response, appellee asserts that appellants’ failure to fulfill their

obligations under the contract was evident from the record. Appellee states that

appellants’ work on the boat engines resulted in “repeated failure” due to the use of

automotive parts that were unsuitable for marine usage. As to the issue of failure,

appellee notes that the engines provided by Big 3 Automotive “did not run, stalled when

shifted, and would not even allow the boat to be operated out of the marinas * * *.”

28. {¶ 74} Our review of the record reveals that appellee contracted with appellants in

October 2013 in order to improve the performance of his boat engines and replace any

excessively worn parts. The parties understood that the improvement in performance

would be measured by an increase in horsepower output, although the parties disputed

whether Trunkett promised an increase of “up to 100 horsepower,” or “at least 100

horsepower.” In any event, the record is clear that appellee was contracting for an

increase in horsepower (i.e. performance) from his engines.

{¶ 75} In its attempts to produce the promised horsepower gains, Big 3

Automotive performed a variety of services and installed a number of parts. Ultimately,

the port engine failed three times. Two of these failures involved a broken valve. The

third failure occurred when the engine misfired after startup, prompting Trunkett to

inform appellee that he was unsure as to the cause of the misfire.

{¶ 76} Thereafter, appellee took the engines to Sterling Performance, over

Trunkett’s objection, in order to get a second opinion. Eventually, appellee received a

report from Sterling Performance, which explained that the failure of the port engine was

due to Big 3 Automotive’s installation of an automotive thermostat that was unsuitable

for marine applications. At trial, D’Anniballe provided a detailed explanation of Sterling

Performance’s findings concerning the thermostat, and clarified that both engines were

fitted with the same defective automotive thermostat. The use of this thermostat in the

starboard engine, according to D’Anniballe’s testimony, would have resulted in the same

failure that was observed in the port engine.

29. {¶ 77} In light of the foregoing testimony, we find that the trial court’s

determination that Big 3 Automotive breached the contract was not against the manifest

weight of the evidence. After three attempts at improving the performance of appellee’s

engines, Big 3 Automotive produced one engine that had failed inexplicably, and another

engine that was prone to a similar fate based upon Big 3 Automotive’s installation of

unsuitable parts. These failures were resolved as a consequence of Sterling

Performance’s work, and appellants introduced no expert testimony to dispute

D’Anniballe’s testimony that Sterling Performance’s work was necessary.

{¶ 78} Alternatively, appellants assert that they had a right under Chapter 1302 of

the Ohio Revised Code to cure the defects in the port engine following the third failure.

Appellants claim that they were unable to cure the defects because appellee refused to

allow Trunkett to take the engine to Ison Racing, opting instead to take the engines to

Sterling Performance.

{¶ 79} The right to cure in this case is set forth in R.C. 1302.52(A), which states:

(A) Where any tender or delivery by the seller is rejected because

non-conforming and the time for performance has not yet expired, the seller

may seasonably notify the buyer of his intention to cure and may then

within the contract time make a conforming delivery.

{¶ 80} The issue here is whether the time for performance had expired by the time

of the third failure, thereby eliminating Big 3 Automotive’s right to cure. On that issue,

the testimony provided at trial indicates that Trunkett understood that appellee wished to

have the engines retooled and ready to go by the start of the 2014 boating season. By the

30. time the engines had failed for a third time, the 2014 boating season had already come to

an end, and Trunkett was yet unsure as to the cause of the failures. Although Trunkett

testified that he never made any promises to have the engines completed by the start of

the 2014 boating season, clearly the time for performance had expired by the end of the

season. Thus, we find that any right to cure that was available to Big 3 Automotive under

R.C. 1302.52(A) had expired prior to appellee taking the engines to Sterling

Performance.

{¶ 81} In sum, we find that the determination that Big 3 Automotive breached the

contract was not against the manifest weight of the evidence. Accordingly, we find

appellants’ first and third assignments of error not well-taken.

2. Warranty Disclaimer

{¶ 82} In appellants’ second assignment of error, they argue that the trial court

erred by finding that the language of Big 3 Automotive’s invoices did not disclaim the

implied warranties of merchantability and fitness for a particular purpose.

{¶ 83} The exclusion or modification of the implied warranties of merchantability

and fitness for a particular purpose is governed by R.C. 1302.29, which states, in relevant

part:

(B) Subject to division (C) of this section, to exclude or modify the

implied warranty of merchantability or any part of it the language must

mention merchantability and in case of a writing must be conspicuous, and

to exclude or modify any implied warranty of fitness the exclusion must be

by a writing and conspicuous. Language to exclude all implied warranties

31. of fitness is sufficient if it states for example, that “There are no warranties

which extend beyond the description on the face hereof.”

(C) Notwithstanding division (B) of this section:

(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 * * *.

{¶ 84} Here, the agreement between the parties was not reduced to writing.

However, Big 3 Automotive’s invoice states at the bottom: “Big 3 Automotive LLC

implies no warranty on labor or parts unless otherwise stated.” Relying upon this

language, appellants argue that no warranties, express or implied, apply to this case.

{¶ 85} In response, appellee contends that Trunkett failed to disclaim the implied

warranties of merchantability or fitness for a particular purpose at the time of the

formation of the agreement. Appellee notes that the language contained in the invoice

was not presented to appellee until well after the parties entered into the oral agreement

that gave rise to appellants’ work on the engines. Thus, appellee urges that the invoice

language has no effect on the implied warranties. Additionally, appellee argues that the

invoice language is silent as to the implied warranty of merchantability and, thus, cannot

be construed as a disclaimer of that warranty.

{¶ 86} At the outset, we note that the trial court’s decision sets out the standard for

disclaiming implied warranties, but does not reference those warranties in its analysis or

32. specifically find that appellants failed to properly disclaim the warranties. Thus, the trial

court’s determination that appellants breached the contract in this case does not rise and

fall on whether or not the implied warranties were disclaimed. To the extent that the trial

court implicitly found the implied warranties of merchantability and fitness for a

particular purpose applicable in this case, its damage award was not impacted by the

warranty determination because none of the damages that were awarded were attributable

to the warranty claims.

{¶ 87} Accordingly, appellants’ second assignment of error is not well-taken.

3. Misrepresentation

{¶ 88} In their fourth assignment of error, appellants argue that the trial court’s

finding in favor of appellee on his claim for misrepresentation was against the manifest

weight of the evidence. In support, appellants cite the Ninth District’s decision in

Textron Fin. Corp. v. Nationwide Mut. Ins. Co.,

,

(9th Dist. 1996), in which the court stated:

In Ohio, a breach of contract does not create a tort claim. Wolfe v.

Continental Cas. Co.,

(6th Cir. 1981). Generally, “the

existence of a contract action * * * excludes the opportunity to present the

same case as a tort claim.”

A tort claim based upon the same actions at

those upon which a claim of contract breach is based will exist

independently of the contract action only if the breaching party also

breaches a duty owed separately from that created by the contract, that is, a

duty owed even if no contract existed. Battista v. Lebanon Trotting Assn.,

33.

(6th Cir. 1976).

; see also Horen v. Summit

Homes, 6th Dist. Wood No. WD-04-001,

(affirming

trial court’s dismissal of negligence claim in a breach of contract action

where the defendant owed no duty to the plaintiffs beyond those established

under the contract).

{¶ 89} Relying upon this language, appellants contend that the only duty they

owed to appellee was whatever duty arose out of the contract between the parties. Since

there was no duty independent of the contractual duty, appellants assert that the trial

court’s decision in favor of appellee on the misrepresentation claim was against the

manifest weight of the evidence. Moreover, appellants claim that there was no evidence

of a misrepresentation of material fact that would support appellee’s claim for

misrepresentation.

{¶ 90} In response, appellee asserts that he relied on Trunkett’s representations

concerning an increase in horsepower and would not have spent the money he spent had

he known the promised increase was not going to materialize.

{¶ 91} Having thoroughly reviewed the evidence in this case, we agree with

appellants that the only duty Big 3 Automotive owed to appellee was the duty that arose

out of its promise to increase the performance of appellee’s engines, which was the

promise that formed the basis for the oral contract between the parties. Because there

was no separate duty, Big 3 Automotive’s breach merely gave rise to appellee’s claim for

breach of contract – the breach does not simultaneously support a claim for

misrepresentation. Chemtrol Adhesives v. American Mfrs. Mut. Ins. Co.,

. 40, 45,

(1989), quoting Battista v. Lebanon Trotting Assn.,

(6th Cir. 1976) (“‘[W]hen the promisee’s injury consists merely of the loss of his

bargain, no tort claim arises because the duty of the promisor to fulfill the term of the

bargain arises only from the contract.’”). Thus, the trial court’s decision in favor of

appellee on his misrepresentation claim is against the manifest weight of the evidence.

{¶ 92} Accordingly, appellants’ fourth assignment of error is well-taken.

However, the trial court’s decision is silent as to any award of damages under this claim,

and therefore the error is harmless.

4. Damages

{¶ 93} In their fifth assignment of error, appellants argue that the trial court’s

damage award was against the manifest weight of the evidence. In particular, appellants

assert that the trial court improperly awarded appellee $26,200 for payments he made to

Big 3 Automotive without deducting $20,249.53, which represented the cost of the parts

that appellee retained after taking the engines to Sterling Performance. Further,

appellants challenge the trial court’s award of $41,956.53 for the services performed by

Sterling Performance, because they claim that appellee failed to introduce evidence to

establish that the services were necessary to cure the defect in the engines.

{¶ 94} In response, appellee urges that the trial court properly awarded him

damages pursuant to R.C. 1302.86, which provides a buyer with the right to cover under

certain circumstances. Because appellants’ arguments do not relate to whether appellee

35. was entitled to cover or whether the trial court properly applied R.C. 1302.86, we need

not address the application of R.C. 1302.86 in order to resolve the issues raised by

appellants.

a. Payments Made to Big 3 Automotive

{¶ 95} In its decision and judgment entry, the trial court awarded appellee $26,200

for payments he made to Big 3 Automotive. The trial court went on to deduct $5,200

from that amount, which represented the cost of the engine block that was cracked prior

to Big 3 Automotive’s attempt to repair the engines. According to appellants, the trial

court should have deducted the entire cost of parts that were installed by Big 3

Automotive from appellee’s damage award.

{¶ 96} At trial, D’Anniballe testified concerning the issue of the parts that were

installed by Big 3 Automotive, stating that he utilized whatever existing components that

remained suitable during the rebuild process, and supplemented those components with

new parts. Additionally, appellee testified that the parts that were installed and later

removed from the engines were offered to, and refused by, Trunkett. Appellee went on to

testify that the parts are currently stored in his garage, and are of no value to him.

{¶ 97} In light of the testimony offered by D’Anniballe and appellee, we do not

find the trial court’s failure to deduct the value of the parts installed by Big 3 Automotive

to be against the manifest weight of the evidence. The record demonstrates that appellee

offered to return the parts, which are of no value to him. Because Big 3 Automotive

refused to accept the parts, we find no merit to appellants’ contention that appellee’s

damages should have been offset by the value of the rejected parts. Moreover, we note

36. that the trial court did properly deduct the value of the engine block that was installed by

Big 3 Automotive, as that part was retained by Sterling Performance.

b. Payments Made to Sterling Performance

{¶ 98} Next, we turn to appellants’ argument that appellee failed to introduce

evidence to establish that the services performed by Sterling Performance were necessary

to cure the defect in the engines. The trial court awarded appellee $41,956.53 for these

services. At trial, D’Anniballe explained that the invoice for that amount reflected the

services provided by Sterling Performance to rebuild the engines after it was determined

that the engines were unsuitable for marine use following Big 3 Automotive’s

modifications. On the issue of necessity, D’Anniballe testified that the work performed

by Sterling Performance was “necessary to change the engine and reconfigure it into a

fashion that it would survive for [appellee’s] intended usage.” D’Anniballe later

explained that both of the engines suffered from the same flawed design that would have

ultimately led to their failure. D’Anniballe testified that both of appellee’s engines were

improperly configured, making them unable to endure the type of extended, high-load

marine application for which they were being used.

{¶ 99} In view of the testimony provided by D’Anniballe, we find that appellee

established that his payment to Sterling Performance in the amount of $41,956.53 was

necessary in order to have the engines rebuilt in a manner that would make them suitable

for marine use. Thus, we find that the trial court’s award of $41,956.53 was not against

the manifest weight of the evidence.

37. {¶ 100} Lastly, appellants challenge the trial court’s award of damages to appellee

for the amount appellee paid to Art Cook Marine Services. Having already vacated the

trial court’s award of damages as it relates to the invoice from Art Cook Marine Services

under appellants’ sixth assignment of error, we need not address that issue here.

{¶ 101} Accordingly, we find appellants’ fifth assignment of error not well-taken.

5. Rejection of Appellants’ Counterclaims

{¶ 102} In their ninth assignment of error, appellants argue that the trial court’s

findings in favor of appellee on their counterclaims for breach of contract, conversion and

unjust enrichment, and fraudulent misrepresentation were against the manifest weight of

the evidence.

{¶ 103} Regarding their counterclaim for breach of contract, appellants reassert

the same arguments they raised in their first and third assignments of error relating to

their right to cure the defects in the engines and appellee’s alleged infringement upon that

right. For the reasons stated in our analysis of the first and third assignments of error, we

find no merit to appellants’ arguments, and thus conclude that the trial court properly

rejected appellants’ breach of contract counterclaim.

{¶ 104} Concerning the conversion and unjust enrichment counterclaim,

appellants argue that appellee has wrongfully retained all the parts used in connection

with the contract with Big 3 Automotive. As discussed above in our analysis of

appellants’ fifth assignment of error, the record demonstrates that appellee has offered to

return these parts, which are of no use to him, but appellants have refused to accept the

38. parts. On these facts, we find that the trial court’s rejection of appellants’ conversion

counterclaim was not against the manifest weight of the evidence.

{¶ 105} With reference to appellants’ fraudulent misrepresentation claim, they

assert that appellee misrepresented to Big 3 Automotive that he was not subject to sales

tax because he was operating as a nonprofit organization when, in fact, he was not

operating as a nonprofit and was therefore obligated to pay sales tax.

{¶ 106} In order to prevail on their fraudulent misrepresentation counterclaim,

appellants were required to establish all of the following elements: (1) a representation, or

where there is a duty to disclose, concealment of a fact, (2) which is material to the

transaction at hand, (3) made falsely, with knowledge of its falsity, or with such other

disregard and recklessness as to whether it is true or false that knowledge may be

inferred, (4) with the intent of misleading another into relying on it, (5) justifiable

reliance upon the representation or concealment, and (6) a resulting injury proximately

caused by the reliance. Cliff v. Loudenslager, 12th Dist. Clermont No. CA2006-01-002,

; Gaines v. Preterm-Cleveland, Inc.,

,

(1987).

{¶ 107} While appellants contend that they were injured as a result of appellee’s

statement that he was tax-exempt, it is unclear how they were damaged as a result of

appellee failing to pay the sales tax for which he is allegedly responsible. Moreover,

appellants introduced no evidence to establish the extent of their damages, if any.

Therefore, we find that the trial court’s rejection of appellants’ fraudulent

misrepresentation claim was not against the manifest weight of the evidence.

39. {¶ 108} Having concluded that the trial court’s rejection of appellants’

counterclaims was not against the manifest weight the evidence, we find appellants’ ninth

assignment of error not well-taken.

III. Conclusion

{¶ 109} In light of the foregoing, the judgment of the Ottawa County Court of

Common Pleas, is hereby affirmed, in part, and reversed, in part. The trial court’s award

of damages to appellee for the payments made to Art Cook Marine Services, Inc. and

Orlandi Performance LLC (totaling $12,297.07) are vacated. The remainder of the trial

court’s judgment is affirmed. The parties are to split the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE

40.