Richards v. Beecumont Volvo

Doan, Judge. Plaintiff-appellant, M. Richards, filed a complaint against defendants-appellees, Beechmont Volvo and Volvo of America, alleging that they had violated the Ohio Consumer Sales Practices Act. Appellees each filed a counterclaim against Richards for attorney fees in which they alleged that Richards’s action was maintained in bad faith. Subsequently, both Richards and appellees filed motions for summary judgment. The materials supporting and opposing the motions showed that Richards took her automobile for repairs at Beechmont Volvo in response to a recall notice by Volvo of America. Beechmont Volvo performed the recall work at no charge. It also performed regular routine service and some small repairs for which it charged Richards $52.34. Additionally, without Richards’s knowledge or consent, it removed her license-plate frames and replaced them with frames advertising Beechmont Volvo. When Richards complained, she learned that Beechmont Volvo replaced the license-plate frames on all vehicles brought in for service. Originally the *190 dealership told her that it could do nothing because her original frames had been destroyed. But, subsequently, it obtained license-plate frames identical to her original frames from the Dayton, Ohio dealership where Richards had bought her Volvo. The trial court granted summary judgment in favor of appellees on all claims in Richards’s complaint. It further determined that appellees were not entitled to attorney fees and dismissed their counterclaims. Finally, the trial court overruled Richards’s motion for summary judgment. This appeal followed. In her sole assignment of error, Richards states that the trial court erred in granting summary judgment in favor of appellees. She argues that the uncontradicted evidence showed that Beechmont Volvo removed her functional, intact license-plate frames without her knowledge or permission and replaced them with frames advertising the dealership. That removal, she claims, is a deceptive and unconscionable act that violates the Ohio Consumer Sales Practices Act. We find that this assignment of error is not well taken. The purpose of R.C. Chapter 1345, the Ohio Consumer Sales Practices Act, is to protect consumers from suppliers who commit deceptive or unconscionable sales practices. Thomas v. Sun Furniture & Appliance Co. (1978), 61 Ohio App.2d 78, 81, 11 O.O.3d 26, 28-29, 399 N.E.2d 567, 569. It is a remedial Act that courts must liberally construe in favor of the consumer. Einhorn v. Ford Motor Co. (1990), 48 Ohio St.3d 27, 29, 548 N.E.2d 933, 935; Renner v. Derin Acquisition Corp. (1996), 111 Ohio App.3d 326, 334, 676 N.E.2d 151, 156-157. Proof that an act is deceptive within the meaning of R.C. 1345.02(A) does not require proof of intent to deceive by the supplier. Funk v. Montgomery AMC/Jeep/Renault (1990), 66 Ohio App.3d 815, 823, 586 N.E.2d 1113, 1119; Thomas, supra, at 82-83, 11 O.O.3d at 29-30, 399 N.E.2d at 569-570. The focus of any inquiry into whether an act is deceptive is the likely effect on the mind of the consumer. Smaldino v. Larsick (1993), 90 Ohio App.3d 691, 697, 630 N.E.2d 408, 411-412. An act is deceptive if it “has the likelihood of inducing in the mind of the consumer a belief which is not in accord with the facts.” Funk, supra, at 823, 586 N.E.2d at 1119, quoting Brown v. Bredenbeck (C.P.1975), 2 O.O.3d 286, 287. In Cranford v. Joseph Airport Toyota, Inc. (May 17, 1996), Montgomery App. No. 15408, unreported, 1996 WL 282997, the Second District Court of Appeals further elaborated by stating that an act is deceptive if “it has the tendency or capacity to mislead consumers concerning a fact or circumstance material to a decision to purchase the product or service offered for sale.” (Emphasis added.) The court went on to state: *191 “Our holding in [a previous case] underscores a factor implicit in the Consumer Sales Practices Act and the relief it offers. In order to be deceptive, and therefore actionable, a seller’s act must not only be at variance with the truth but must also concern a matter that is or is likely to be material to a consumer’s decision to purchase the product or service involved. A matter that is merely incidental to the choices a consumer must make when deciding to engage in the transaction is, therefore, not ‘deceptive’ within the meaning of the Consumer Sales Practices Act or a basis for the relief that it offers, even though it is objectively untrue.” In that case, the plaintiffs purchased a vehicle on February 17 and returned it on the following day for repairs. At that time, the plaintiffs indicated that the monthly payment was too high and asked about new financing. The dealership arranged for a new loan and, on February 18, prepared a new sales contract. Without the plaintiffs’ knowledge, it backdated the contract to February 17, the day the plaintiffs originally purchased the vehicle. Subsequently, the plaintiffs sought to rescind the sales contract apparently because the dealership had advertised the vehicle for a lower price than the plaintiffs had paid for it. They brought an action for violations of the Consumer Sales Practices Act, claiming that the dealer had committed several deceptive acts, including backdating the contract. The court found that although the backdating of the contract was arguably deceptive, it was not actionable under the Consumer Sales Practices Act because it did not have a material effect on the plaintiffs’ decision to purchase the vehicle: “It is apparent that the [plaintiffs] wish to be no longer bound by their contract, but that desire, standing alone, does not cause the act of the seller in backdating the contract to be a ‘deceptive act’ for the purposes of R.C. 1345.02. The one-day difference is merely incidental to the transaction and was immaterial to the [plaintiffs’] decision to enter into it. The act has not been shown to have the tendency or capacity to deceive, and so it was not a ‘deceptive’ act or practice for purposes of R.C. 1345.02(A).” We find the Cranford court’s logic to be applicable to the present case. Here, the consumer transaction was the warranty repair and other services performed on Richards’s vehicle by Beechmont Volvo. See R.C. 1345.01(A); Brown v. Liberty Clubs, Inc. (1989), 45 Ohio St.3d 191, 193-194, 543 N.E.2d 783, 785-786. Richards has made no complaint of any kind about these services; she takes issue only with the replacement of her license-plate frames, which was completely incidental. Although the replacement of the frames could arguably constitute a conversion, that act is not inextricably intertwined with the consumer transaction itself and does not have the capacity or tendency to deceive. See Liberty Clubs, supra, at 194-195, 543 N.E.2d at 786; Saydell v. Geppetto’s Pizza *192 & Ribs Franchise Systems, Inc. (1994), 100 Ohio App.3d 111, 125, 652 N.E.2d 218, 227. We do not believe that this type of a minor, incidental situation is what the Consumer Sales Practices Act was designed to remedy, particularly given that the dealership made a good-faith effort to remedy Richards’s complaint by tendering an identical set of frames. See Palmer v. George Ballas Buick, Inc. (Nov. 23, 1984), Lucas App. No. L-84-060, unreported, 1984 WL 14430. Compare State ex rel. Celebrezze v. Ferraro (1989), 63 Ohio App.3d 168, 578 N.E.2d 492; Brown v. Lyons (C.P.1974), 43 Ohio Misc. 14, 72 O.O.2d 216, 332 N.E.2d 380. Consequently, we hold that the replacement of the license-plate frames was not a deceptive act as contemplated by the Act. See, generally, Roberts & Martz, Consumerism Comes of Age: Treble Damages and Attorney Fees and Consumer Transactions—The Ohio Consumer Sales Practices Act (1981), 42 Ohio St.L.J. 927. We find no issues of material fact. Construing the evidence most strongly in Richards’s favor, we hold that reasonable minds can reach but one conclusion: that appellees did not commit a deceptive act within the meaning of R.C. Chapter 1345. Appellees were entitled to judgment as a matter of law, and the trial court did not err in granting summary judgment in their favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. Accordingly, we overrule Richards’s assignment of error and affirm the judgment of the trial court. We also note that appellees argue in their brief that Richards’s appeal is frivolous and therefore that we should award them the attorney fees they have incurred in this appeal pursuant to App.R. 23. They have not, however, filed a motion for fees pursuant to App.R. 15 or Loc.R. 13. A paragraph in a responsive brief is insufficient to raise the issue before this court, and we therefore decline to consider it. Hollon v. Abner (Aug. 29, 1997), Hamilton App. No. C-960182, unreported, fn. 2, 1997 WL 602968. Judgment affirmed. Shannon, J., concurs. Painter, P.J., dissents. Raymond E. Shannon, J., retired, of the First Appellate District, sitting by assignment.