[Cite as Holliday v. Calanni Ents., Inc.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

YOLANDA HOLLIDAY, :

Plaintiff-Appellee, : No. 110001 v. :

CALANNI ENTERPRISES, INC., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: July 1, 2021

Civil Appeal from the Lakewood Municipal Court Case No. 2018-CVI-01295

Appearances:

Yolanda Holliday, pro se.

Kenneth D. Myers, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Calanni Enterprises, Inc. (“Calanni”), appeals

the trial court’s decision entering judgment in favor of plaintiff-appellee, Yolanda

Holliday (“Holliday”). Finding merit to the appeal, we reverse and remand with

instructions for the trial court to enter judgment in favor of Calanni. In July 2018, Holliday filed a small claims complaint against Calanni

for money damages associated with repairs made to her vehicle. Holliday sought a

refund of $1,699.87.

At trial, Holliday and her father, George Holliday (“George”)

(collectively “the Hollidays”), testified regarding the circumstances surrounding the

repair of the vehicle. On November 2, 2017, Holliday’s then-boyfriend, Joe Frame,

contacted Calanni to repair Holliday’s 2004 Mitsubishi Endeavor. The vehicle was

towed to the Calanni lot. According to Holliday, the main concerns about her vehicle

were that the car would not shift into gear and the check-engine light was

illuminated. A repair order dated November 2, 2017 was purportedly signed by

Frame, authorizing Calanni to make the repairs described on the work order. Those

repairs included basic fluid checks and refills, charging the battery, ignition work,

and gearshift repair. The total cost for the repairs was $1,699.87.

Charles Calanni (“Charles”) testified that he completed the repairs

listed on the repair order. Because Holliday needed additional time to pay for the

repairs, he stored her vehicle at an offsite location until the invoice was paid. It is

undisputed that the invoice was paid in full on April 2, 2018, and George drove the

vehicle from the Calanni lot.

George testified that when he got into the vehicle, he noticed that the

gearshift cover was not replaced on the gearshift and was sitting on the passenger

seat. He admitted, however, that the gearshift issue was repaired. According to George, he had to jump-start the car the next day to take

it back to Calanni for the “ignitions test,” i.e., E-check. He stated that on his way to

Calanni, the car stalled, and he had to call Charles for the car to be towed back to the

shop. According to George, Charles told him that the battery cables were connected

incorrectly. After they were tightened, George left with the vehicle without getting

the ignitions test done. On the way home the vehicle stalled again. George said that

he called Charles, and the vehicle was towed again back to the shop. According to

George, Charles advised him that the alternator was bad and would cost $200 to fix.

George said that Charles subsequently told him that there were some wiring issues,

and despite being told it would only take a few days to fix, weeks passed without

hearing anything regarding the repairs.

George stated that when he finally spoke to Charles, he was told that

the fuel pump was clogged and needed repair. According to George, Charles told

him it would be fixed within a week, but after time passed, Charles told him that the

starter needed repair. Documentary evidence was presented that on June 27, 2018,

George authorized a repair order whereby Calanni agreed to accept $200 to make

all the subsequent repairs to Holliday’s vehicle.

George testified that he did not know what the initial November 2017

repair order involved. He further stated that the subsequent issues involving the

battery, fuel pump, alternator, and starter occurred after the car was initially fixed.

Finally, he stated that he did not know whether these subsequent problems were

related to the initial repairs made by Calanni. Holliday testified that her ex-boyfriend had her vehicle towed to

Calanni to repair a gearshift issue — the car would run but would not shift into gear

— and to address the illuminated check-engine light. Holliday stated that the vehicle

was in Calanni’s possession from November 2, 2017 until April 2, 2018, which was

when the repair invoice was paid in full. She stated that on that date, her father

drove the car off the lot; she admitted that as of that date, the gearshift issue had

been repaired. She stated that the check-engine light was still illuminated, however.

When asked whether she had any evidence that Calanni did not fix

the items listed on the November 2, 2017 repair order, Holliday responded “[n]ot

yet,” but said she felt that if the car was not running, then nothing was fixed,

especially because the check-engine light was still illuminated. (Tr. 66.) Holliday

later stated that she did not know what Calanni fixed, speculating that nothing was

fixed.

Regarding the “ignitions test” or E-check, Holliday stated that she

gave Charles some paperwork so he could obtain an E-check. She testified that she

did not know that he obtained the E-check, stating that she had not seen Exhibit 14,

the State of Ohio Vehicle Inspection Report depicting that an E-check was

performed on her vehicle on November 2, 2017. George, however, denied that the

E-check was ever obtained because they could not get license plates for the vehicle.

Charles testified that when the vehicle was initially towed to his shop,

it had a running and shifting problem. According to Charles, it was “diagnosed with

bad ignition coils and fuel injection work, and a running problem on the shifter problem. There were some linkage problems on the shifter.” (Tr. 82.) Charles

stated that he had the vehicle repaired within a few days. (Tr. 84-85.) He testified

that after he repaired the vehicle, it sat in storage until the invoice was paid on

April 2, 2018. Charles stated that he heard from George in late April about getting

the vehicle E-checked, but other than that, he did not hear any complaints about the

repairs made until early May 2018 when the Hollidays contacted him again

regarding getting the vehicle E-checked, and stating that they were experiencing

additional issues with the vehicle, including the battery, alternator, and starter.

According to Charles, he had the vehicle in his shop again in May to address these

issues, but it sat until June 27, 2018, because the Hollidays would not authorize the

repairs.

Charles denied that the work listed in the repair order dated June 27,

2018, was contracted for under the original work order in November 2017. He

testified that he completed all the work listed in the original 2017 work order and

that when the Hollidays picked up the vehicle in April 2018, it was operable.

The trial court concluded that the gearshift issue was repaired, but

that the check-engine light, which was still illuminated, revealed that the repairs

were not made as agreed. The court found that $200 was a “fair and reasonable”

amount for the gearshift repair and that Calanni was entitled to $86 for towing

Holliday’s vehicle. Accordingly, the trial court entered judgment in favor of Holliday

in the amount of $1,413.87.

Calanni now appeals, raising the following two assignments of error. In its first assignment of error, Calanni contends that the trial court

erred in overruling its motion to dismiss pursuant to Civ.R. 41(B)(2) because

Holliday presented no evidence in support of her claim that Calanni failed to do any

work on her car.

Civ.R. 41(B)(2) provides that

[a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Civ.R. 52 if requested to do so by any party.

Under Civ. R. 41(B)(2), a defendant may move for dismissal on the

ground that under the facts and law, the plaintiff has shown no grounds for relief.

In this situation, the trial court’s role is “to weigh the evidence, resolve any conflicts

therein, and render judgment for the defendant if the plaintiff has shown no right to

relief.” Bank One, Dayton, N.A. v. Doughman,

,

, (1st Dist. 1988). Under Civ.R. 41(B)(2), the trial court does not view the

evidence in the light most favorable to the plaintiff. Whitestone Co. v. Stittsworth,

10th Dist. Franklin No. 06AP-371,

. The trial court’s only

consideration in ruling on a motion for involuntary dismissal is “‘whether [the]

plaintiff has made out [her] case by a preponderance of the evidence.’” Pacher v.

Invisible Fence of Dayton,

,

,

(2d Dist.), quoting L.W. Shoemaker, M.D., Inc. v. Connor (1992),

,

(10th Dist. 1992).

A reviewing court may set aside a trial court’s decision under Civ.R.

41(B)(2) “only if it is erroneous as a matter of law or against the manifest weight of

the evidence.” Osborne, Inc. v. H&R Purchasing, Inc., 11th Dist. Lake No. 2003-L-

051,

.

In order to prevail on a breach-of-contract claim, the party seeking to

enforce the contract must prove, by a preponderance of the evidence, all of the

elements of the claim. On Line Logistics, Inc. v. Amerisource Corp., 8th Dist.

Cuyahoga No. 82056,

, citing Cooper & Pachell v. Haslage,

,

(9th Dist. 2001). These elements

include “the existence of a contract, performance by the plaintiff, breach by the

defendant, and damage or loss to the plaintiff.” Doner v. Snapp,

,

(2d Dist. 1994).

In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, evidence must still exist on each element

(sufficiency) and the evidence on each element must satisfy the burden of

persuasion (weight).” Eastley v. Volkman,

,

,

, ¶ 17. “Preponderance of the evidence simply means ‘evidence which

is of greater weight or more convincing than the evidence which is offered in

opposition to it.’” In re Starks, 2d Dist. Darke No. 1646,

,

quoting Black’s Law Dictionary (6th Ed. 1998) 1182. In this case, there is no dispute that the parties entered into a contract

whereby Holliday agreed to pay Calanni $1,699.87 in exchange for Calanni fixing

the gearshift and addressing the illumination of the check-engine light on Holliday’s

2004 Mitsubishi Endeavor vehicle. There is also no dispute that Calanni towed the

vehicle to his shop on November 2, 2017, to make the repairs. It is further

undisputed that Holliday made a $600 payment on March 5, 2018, and a $1,099.87

payment on April 2, 2018, when the vehicle was driven from the Calanni lot by

Holliday’s father. It is undisputed that the car was in Calanni’s possession from

November 2, 2017 until April 2, 2018. Accordingly, the existence of a contract,

performance by Holliday, and the alleged damages are not in dispute.

The relevant issue is whether Calanni breached its promise to repair

the gearshift and address the check-engine light. At trial, Holliday admitted that

Calanni repaired the gearshift because her father drove it off the Calanni lot.

Q. So the car was — the gearshift was fixed, correct?

A. Yes. He just didn’t put the gearshift thing on. It was not on like they got it on this picture. It was off, sitting in the seat.

Q. Okay. So the gearshift cover was off, but the gearshift was running and the car was operated (indiscernible)?

A. It — yeah, [my father] could — [my father] could drive it, yes.

(Tr. 65.)

The trial court acknowledged that the gearshift was repaired and

found “that the amount of [$200] is fair and reasonable for the work performed to

repair the sticking gearshift.” No testimony or evidence was presented supporting the trial court’s determination of the “reasonableness” of the repair cost, and the

trial court did not explain how it reached that conclusion.

Although the gearshift was repaired, Holliday and her father testified

that the engine light was illuminated when the vehicle was picked up on April 2,

2018. (Tr. 65-66.) However, no evidence was presented regarding what was causing

the check-engine light to be illuminated or that they brought this issue to Calanni’s

attention prior to paying the invoice in full and driving the car off the lot.

The trial court placed much emphasis on the fact that the check-

engine light was still illuminated when the Hollidays picked up the vehicle, thus

concluding that Calanni did not repair this issue. However, as the trial court noted,

Calanni was able to obtain an e-check of Holliday’s vehicle, and as the trial court

found in its decision, “a vehicle will not pass the E-check emissions test when the

check-engine light is on.” Accordingly, without any testimony or finding that the E-

check was not in fact performed, the evidence supports a conclusion that the check-

engine light was not illuminated at that time that the test was completed.

Calanni contends that the vehicle was repaired as contracted, and that

Holliday failed to withstand her burden of proving that the subsequent issues she

experienced with her vehicle were caused by the repairs it made or that it did not

make the repairs as charged.

In support, Calanni cites to Mitchell v. Brownies Transm., Inc., 2d

Dist. Montgomery No. 27563,

. In that case, Mitchell contracted with

Brownies to repair his transmission and torque converter on his vehicle. Despite Brownies making the agreed-upon repairs, the vehicle would not start when Mitchell

picked up his vehicle. The vehicle was towed to Mitchell’s house, and no further

work was performed on the vehicle. At trial, Mitchell contended that Brownies

breached its contract when it failed to fix the vehicle’s transmission. The trial court

agreed, finding that when Mitchell’s vehicle was returned, it was inoperable. The

Second District reversed the trial court, concluding that Mitchell failed to withstand

his burden of demonstrating that the subsequent problems he experienced with his

vehicle were related to the repairs made by Brownies. Id. at ¶ 37. The court noted

that a number of issues could have rendered the vehicle inoperable, including the

age of the vehicle, other problems Brownies noted on the invoice that needed to be

addressed, or the fact that the vehicle was stored in Brownies lot over the winter

while Mitchell made payments on the invoice. Id. at ¶ 36-37.

We find Mitchell instructive. Much like in Mitchell, Holliday failed to

provide any evidence establishing that Calanni did not perform the agreed-upon

repairs or that the subsequent issues she experienced were related to the repairs.

The evidence was undisputed that Calanni fixed the gearshift issue. However,

because Holliday’s vehicle was stored for a period of time after Calanni made the

agreed-upon repairs, other issues affecting the operability of Holliday’s vehicle may

have developed during that time, including why Holliday’s check-engine light was

illuminated.

We find that Holliday failed to establish by a preponderance of the

evidence that Calanni breached the service contract. No evidence was presented that the work Calanni charged for was not performed or was not necessary to repair

the vehicle as contracted. And no evidence was presented that the problems

Holliday subsequently experienced were related to the work performed and charged.

Accordingly, the trial court erred in denying Calanni’s Civ.R. 41(B)(2)

motion to dismiss. Calanni’s first assignment of error is sustained. Consequently,

Calanni’s second assignment of error, requesting reversal on a manifest weight

challenge, is rendered moot.

Judgment reversed and remanded.

It is ordered that appellant recover from appellee 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

ANITA LASTER MAYS, P.J., and MARY EILEEN KILBANE, J., CONCUR