ORIGINAL

IN THE SUPREME COURT OF OHIO

GERALDINE MATTHEWS,

Plaintiff-Appellant,

12-^.^74On Appeal from the HamiltonCounty Court of Appeals,First Appellate District

V.

Court of Appeals No.MARK HEFLIN ENTERPRISES, INC. C110612dba MARK'S AUTO BODY,

and

MARK HEFLIN,

CINFED CREDIT UNION,

Defendants-Appellants.

Trial Court No.A1001178

MEMORANDUM IN SUPPORT OF JURISDICTION

STEPHEN R. FELSON (0038432)215 E. Ninth St., Suite 650Cincinnati, OH 45202(513)721-4900(513) 639-7011 (fax)stevef8953(aDaol.comAttorney for Plaintiff-Appellant

MODAUG 13ZOi2

CL'kR410E COURTSUPREME COUR) Ul OHIO

Q:f&f/civil/Matthews,Geraldine/Supreme Court/juris memo8/10/2012

TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS ONE OFGREAT GENERAL INTEREST 2

STATEMENT OF THE CASE AND FACTS 4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW 7

Proposition of Law No. I: When a car-repair shopprovides a consumer with a tear-down authorization,receives a signed authorization, tears down thevehicle and gives the consumer an estimate, allof its conduct with respect to that vehicle iscovered by the Consumer Sales Practices Act

Proposition of Law No. II: A jury could reasonablyfind that a car repair shop committed an unconscionableact or practice in violation of the Consumer SalesPractices Act when it (1) estimated the cost of repairof the vehicle at over $7,000 knowing the work couldbe done for $1;70; (2) held the vehicle for over sixmonths while charging $14 per day storage despiteknowing the consumer could not pay for the repairs;(3) waited over six months before giving the consumera repair estimate while storage charges were accumu-lating; and (4) lied to the Bureau of Motor Vehiclesin order to obtain title to the consumer's vehicle.

Proposition of Law No. III: Heflin failed to followOhio's statutory requirements for obtaining title;Ms. Matthews therefore has the better title andmay maintain her conversation claim.

7

10

14

CONCLUSION 15

EXPLANATION OF WHY THIS CASE IS ONE OF GREATGENERAL INTEREST

Violations of the Consumer Sales Practices Act ("CSPA") are defined generally

in R.C. 1345.02 and 1345.03. The former provides:

(A) No supplier shall commit an unfair or deceptive act or practice inconnection with a consumer transaction. Such an unfair or deceptive act orpractice by a supplier violates this section whether it occurs before, during,or after the transaction. (Emphasis added.)

R.C. 1345.03 provides:

(A) No supplier shall commit an unconscionable act or practice in connectionwith a consumer transaction. Such an unconscionable act or practice by asupplier violates this section whether it occurs before, during, or after thetransaction. (Emphasis added.)

And R.C. 1345.01(A) defines a consumer transaction as:

(A) "Consumer transaction" means a sale, lease, assignment, award bychance, or other transfer of an item of goods, a service, a franchise, or anintangible, to an individual for purposes that are primarily personal, family,or household, or solicitation to supply any ofthese things. (Emphasis added.)

This Court has uniformly held that the CSPA "is a remedial law which is designed

to compensate for traditional consumer remedies and so must be liberally construed

pursuant to R.C. 1.11." Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177, 2006-

Ohio-5481, 855 N.E.2d 825, ¶ 11, citing Einhorn v. Ford Motor Co., 48 Ohio St.3d 27,

29, 548 N.E.2d 933(1990). Consequently, appellate courts have found that the CSPA

covers many sir„a0ons between cons„mer and .suppher despite the fact that a sale never

took place or that the supplier never actually provided services.

For example, in Durant-Baker v. Secor Funeral Home, 5th Dist. No. 2009-CA-

0127,2010-Ohio-4208, a funeral home failed to provide a consumer with a general price

list. The consumer claimed this violated the CSPA and led to an unauthorized transfer of

2

a dead body from the morgue to an embalming facility. Despite the fact that the parties

never contracted for goods or services, the Fifth Appellate District held that the

CSPAcovered this conduct:

Case law dictates that under the Consumer Sales Practices Act it isnot necessary for a sale to actually take place for a supplier to be held liableto a consumer for a deceptive act. Solicitation to sell goods may be sufficientto give rise to liability even without a sale if the deceptive act is committed inconnection with the solicitation. Weaver v. J.C. Penney Company ([8ih App.Dist.] 1977), 53 Ohio App.2d 165, 372 N.E.2d 633.Negotiation can constitutesolicitation even if a sale is never consummated. McDonald v. BedfordDodson ([8^' App. Dist.] 1989), 59 Ohio App.3d 38, 570 N.E.2d 299.

Weaver involved the advertisement of goods not in stock and therefore never

purchased, while McDonald held that "Bedford's actions in negotiating its sales

agreement [for a vehicle] amounted to solicitation. Accordingly, the Consumer Sales

Practices Act is applicable." 59 Ohio App.3d at 41.

In the instant case the appellate court faced uncontested facts indicating:

• A car repair shop had possession of the consumer's vehicle;

• The owner sent the consumer a "tear-down authorization" so he couldanalyze the problem with her vehicle and give her a repair estimate;

• The consu.mer signed the authorization, the repair shop tore down thevehicle, and the owner sent the consumer an estimate;

• The consumer rejected the estimate and requested the return of hervehicle;

• The repair shop kept the vehicle, transferred title to the shop, and later

transferred title to the shop owner, depriving the consumer of her

vehicle.

The First Appellate District held that these facts demonstrated (1) that the repair

shop never contracted with the consumer to repair her car; and (2) the repair shop never

engaged "in conduct that was a`solicitation to supply' his repair service." The tear-down

3

authorization and the written estimate therefore did not bring the matter within CSPA

coverage and the consumer's CSPA claim had to fail. (Opinion at 4)

Comparing these two cases makes it plain that the Fifth Appellate District would

have applied the CSPA to the facts of the instant case, whereas the First Appellate

District would have rejected the consumer's position in Durant-Baker, supra.

Consumers and suppliers alike deserve a decision from this Court resolving the above

conflict. Coverage under this important statute is of great general interest, both because

of the split in the appellate districts and in light of the obviously high volume of car

repair estimates where a contract never occurs because the car owner obtains more than

one such estimate.

STATEMENT OF THE CASE AND FACTS

On December 31, 2007, Plaintiff, Geraldine Matthews, was involved in an

automobile accident in Kentucky. She was taken to an emergency room and Airport

Towing towed her 2003 PT Cruiser to its lot. Some days later she called Defendant Mark

Heflin, owner of Mark's Auto Body, to see about repair and they agreed he would tow

the vehicle to his repair shop in Cincinnati.

Heflin was aware from the beginning that Ms. Matthews' insurance would not .

pay for repairs but, as he testified, "because she was a friend of a friend that I would try

to help her out," Hoyyever, he immediately began eharging her $lA per day fnr storage

from the time "I received the vehicle," January 9, 2008.

Six months later, by which time Ms. Matthews was living in Florida, Mr. Heflin

sent her a "tear-down authorization" which he considered necessary before he could pro-

duce a repair estimate. She immediately signed it and faxed it back, writing on it, "Thank

4

you and may God continue to bless your business." She also put a note on her copy of

the fax transmittal sheet that she "spoke to Mark - said he was not charging me for the

storage and told me on 6/27/08 to call him back on Monday." The tear-down charge was

$176. Heflin performed the tear-down in "maybe the middle of July [2008]."

The parties disagree as to the substance of their telephone conversations in late

June and early July 2008. Ms. Matthews testified that Heflin told her he was "not going

to charge me for the storage." Within a few days, however, Heflin told her in another

telephone call that "I was not gonna get my car back.... The car was going to become

his.... Mark told me that he could get the title to the car and the vehicle would be his

car. That's what upset me and that's when I got the attorney." Mr. Heflin neither denied

nor confirmed these statements.

Ms. Matthews' attorney wrote to Mr. Heflin on July 15, 2008, requesting a repair

estimate. Heflin then sent his first and only estimate - $9,874.72, including storage

charges of $2,870. Ms. Matthews' attorney wrote back declining repairs and requesting

the return of the vehicle. Heflin responded only with a form document showing storage

charges beginning nine days before he received the vehicle and totaling $3,850.

On or about March 27, 2009, Mr. Heflin signed and had notarized an Unclaimed

Motor Vehicle Affidavit directed to the BMV in which he swore to the following facts:

• The NADA wholesale of the PT Cruiser "regardless of condition"was $4,750.

• The estimated cost of repairs to restore the vehicle to wholesale valuewas $1,700.

• The expenses incurred for towing were $521.

n The expenses incurred for storage were $5,726.

• The value of the vehicle less deductions was negative $3,197.

5

On the basis of this affidavit Heflin obtained a title document to the vehicle in the name

of Mark Heflin's Auto Body. He then had his company convey title to himself

personally. When deposed on August 19, 2010, Heflin admitted he was driving Ms.

Matthews' PT Cruiser to work and had driven it to the deposition.

Ms. Matthews continued to pay off her vehicle loan after the accident; she made

her last payment on March 29, 2010, 27 months after she entrusted the vehicle to Heflin's

lot. As a result, on March 30, 2010, CinFed released its lien and sent Ms. Matthews the

original title, even though Heflin already possessed a title to the same vehicle as noted

above.

Ms. Matthews filed her complaint on February 8, 2010. Heflin counterclaimed

for storage charges on March 12, 2010. On August 30, 2010, Ms. Matthews moved for

leave to add an additional defendant, CinFed Credit Union ("CinFed"), asserting that

CinFed had failed to deliver a valid title document. All Defendants moved for summary

judgment. On March 15, 2011, the trial court granted both motions without opinion,

dismissing "all claims against all defendants." Ms. Matthews filed a timely notice of

appeal on April 6, 2011. The First District dismissed that appeal on May 11, 2011, for

lack of a final appealable order, as the trial court entry did not adjudicate counterclaim

damages. On September 7, 2011, the trial court awarded damages against Ms. Matthews

anrl in favor of Heflin in the amount of $6,653.06.

Ms. Matthews noticed her second appeal on September 29, 2011. The First

Appellate District rejected her CSPA claim on the ground that the Act did not cover the

facts of this case. It also rejected her conversion claim on the ground that the numbers

Mr. Heflin placed in his BMV affidavit were acceptable. The Court reversed the

6

judgment on Heflin's counterclaim on the ground that his "acquisition of title to

Matthews' car pursuant to R.C. 4505.101 had extinguished his claims for towing and

storage charges." Finally, the First Appellate District affirmed the dismissal of Ms.

Matthews' claim against CinFed on contractual grounds.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: When a car-repair shop provides aconsumer with a tear-down authorization, receives a signedauthorization, tears down the vehicle and gives the consumer anestimate, all of its conduct with respect to that vehicle is covered bythe Consumer Sales Practices Act.

As noted above, several appellate courts have found CSPA coverage absent any

contract for the sale of goods or services. See Durant-Baker, supra. In addition, many of

the Attorney General's administrative rules, promulgated in compliance with R.C.

1345.05(A), would be severely undermined if the First Appellate District's ruling were to

prevail, since those rules would cover conduct not covered by the CSPA itself. For

example, Ohio Admin. Code 109:4-3-13 provides, in part, as follows:

A) It shall be a deceptive act or practice in connection with aconsumer transaction involving the performance of either repairs or anyservice upon a motor vehicle where the anticipated cost exceeds twenty-fivedollars and there has been face to face contact at the supplier's place ofbusiness during the hours such repairs or services are offered, between theconsumer or his representative and the supplier or his representative, prior tothe commencement of the repair or service for a supplier to:

(1) Fail, at the time of the initial face to face contact and prior to thecommencement of any repair or service, to provide the consumer with a formwhich indicates the date, the identity of the supplier, the consumer's nameand telephone number, the reasonably anticipated completion date and, ifrequested by the consumer, the anticipated cost of the repair or service. Theform shall also clearly and conspicuously contain the following disclosures insubstantially the following language:

"Estimate

7

You have the right to an estimate if the expected cost of repairs orservices will be more than twenty-five dollars. Initial your choice:

written estimate oral estimate no estimate"

These protections lose much of their efficacy if a signed contract between the

consumer and the supplier became a condition precedent to their enforcement.

(2) Fail to post a sign in a conspicuous place within that area of thesupplier's place of business to which consumers requesting any repair orservice are directed by the supplier or to give the consumer a separate form atthe time of the initial face to face contact and prior to the commencement ofany repair or service which clearly and conspicuously contains the followinglanguage:

"Notice

If the expected cost of a repair or service is more than twenty-fivedollars, you have the right to receive a written estimate, oral estimate, or youcan choose to receive no estimate before we begin work. Your bill will not behigher than the estimate by more than ten per cent unless you approve alarger amount before repairs are finished. Ohio law requires us to give you aform so that you can choose either a written, oral, or no estimate."

Again, these provisions would be less effective in protecting the consumer if

coverage under the Act were narrowly defined.

(3) Fail, where a consumer requests a written estimate of theanticipated cost of repairs or services, to make a bona fide effort during theinitial face to face contact to provide the written estimate on the formrequired by paragraph (A)(1) of this rule;

(4) Fail, where a consumer requests a written or oral estimate, to givethe estimate to the consumer before commencing the repair or service.

The consumer's valuable right to shop around for a lower estimate would be

severely hampered if the supplier's failure to give estimates pursuant to these provisions

were narrowly construed.

(B)(2) Fail in all other instances, upon the first contact with theconsumer, to inform the consumer of the right to receive a written or oralestimate of the anticipated cost of the repair or service;

8

(3) Fail, where the consumer requests an oral estimate, to give the oralestimate to the consumer before commencing the repair or service;

(4) Fail, where the consumer requests a written estimate, to prepare awritten estimate, inform the consumer that the estimate is available, and uponthe consumer's request, give the estimate to the consumer before commencingthe repair or service.

(C) In any consumer transaction involving the perfonnance of anyrepair or service upon a motor vehicle it shall be a deceptive act or practicefor a supplier to:

(1) Make the perfonnance of any repair or service contingent upon aconsumer's waiver of any rights provided for in this rule;

(4) Fail to disclose prior to acceptance of any motor vehicle forinspection, repair, or service, that in the event the consumer authorizescommencement but does not authorize completion of a repair or service, thata charge will be imposed for disassembly, reassembly, or partially completedwork. Any charge so imposed must be directly related to the actual amount oflabor or parts involved in the inspection, repair, or service;

(7) Fail to disclose upon the first contact with a consumer the basisupon which a charge will be imposed for towing the motor vehicle if thatservice will be performed;

(8) Represent that repairs or services are necessary when such is not

the fact;

(101 Represent that a motor vehicle or any part thereof which is beinginspected or diagnosed for a repair or service is in a dangerous condition, orthat the consumer's continued use of it may be harmful, when such is not thefact;

(11) Materially understate or misstate the estimated cost of the repairor service;

9

(16) Fail to disclose to the consumer prior to the commencement ofany repair or service, that any part of the repair or service will be performedby a person other than the supplier or his employees, if the supplier disclaimsany warranty of the repair or service performed by that person. In additionthe supplier shall disclose the nature of the repair or service which that personwill perform, and if requested by the consumer, the identity of that person.

(17) Fail to inform the consumer, prior to the performance of anyrepair or service, that part(s) to be used in effectuating the repair or servicewill be remanufactared, rebuilt, or used.

As noted above, the consumer is entitled to comparison shop estimates from

different repair shops, a practice which would be greatly inhibited if the shop cannot be

punished under the Act for violating these provisions when no contract yet exists. The

Legislature, in amending the CSPA in 1980, 1988, 2000, 2006, 2008, 2009, and 2012,

without undermining these rules, and in specifically covering conduct "whether it occurs

before, during, or after the transaction," R.C. 1345.02 and .03, has made clear that no

contract is necessary before the CSPA may be applied. The decision below was therefore

wrong.

Proposition of Law No. II: A jury could reasonably find that a car repairshop committed an unconscionable act or practice in violation of theConsumer Sales Practices Act when it (1) estimated the cost of repair of thevehicle at over $7,000 knowing the work could be done for $1,700; (2) heldthe vehicle for over six months while charging $14 per day storage despiteknowing the consumer could not pay for the repairs; (3) waited over sixmonths before giving the consumer a repair estimate while storage chargeswere accumulating; and (4) lied to the Bureau of Motor Vehicles in order toobtain title to the consumer's vehicle.

The factors listed in R.C. 1345.03 are neither conclusive nor exclusive but are "to

be taken into consideration in determining whether an act is unconscionable." Herbort v.

Columbia Oldsmobile, Inc., 1s` Dist. No.C-910029, 1991 WL 249968, *1. Several of

those factors apply here (see below). In addition, Heflin also engaged in other uncons-

cionable conduct, also demonstrated below. The trial court therefore erred in dismissing

10

Ms. Matthews claims, since it necessarily decided that a jury examining Heflin's conduct

could not reasonably conclude that he committed an unconscionable act or practice. The

court of appeals never reached this point, having held that the Act did not apply.

A. HEFLIN COMMITTED AN UNCONSCIONABLE ACT BY ESTIMATING THE COST OF

REPAIR OF MS. MATTHEWS' VEHICLE AT OVER $7,000 WHEN HE KNEW IT COULD

BE REPAIRED FOR $1,700.

R.C. 1345.03(B)(2) declares that an act may be held unconscionable if "the sup-

plier knew at the time the consumer transaction was entered into that the price was sub-

stantially in excess of the price at which similar property or services were readily obtain-

able in similar consumer transactions by like consumers." "Substantially in excess" does

not mean everyexcess, but only one which fits the dictionary definition of the word

"substantially," namely, "real," "true,""not imaginary or illusory," "important."

Herbort, supra; WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1985), p. 1176.

In his affidavit to the Bureau of Motor Vehicles ("BMV") Heflin swore that the

PT Cruiser only needed repairs in the amount of $1,700. His estimate to Ms. Matthews

was over $7,000, an excess of over 400 per cent. A jury could reasonably find that Heflin

substantially overstated the price for repairs and that this was unconscionable. It could

also find that this conduct violated the unconscionability factors found in subsections

(B)(3) ("the supplier knew at the time the consumer transaction was entered into of the

inability of the consumer to receive a substantial benefit from the subject of the consumer

transaction") and (B)(5) ("the supplier required the consumer to enter into a consumer

transaction on terms the supplier knew were substantially one-sided in favor of the

supplier").

u

B. HEFLIN COMMITTED AN UNCONSCIONABLE ACT WHEN HE HELD MS. MATTHEWS'

VEHICLE FOR OVER SIX MONTHS AND CHARGED HER STORAGE OF $14 PER DAY ,KNOWING SHE COULD NOT PAY To REPAIR IT.

Subsection (B)(4) permits a finding of unconscionability where the supplier

"knew at the time the consumer transaction was entered into that there was no reasonable

probability of payment of the obligation in full by the consumer." Since Heflin admit-

tedly knew there was no insurance available and that Ms. Matthews could not pay for

extensive repairs out of her own pocket, a trier of fact could find that his conduct in

supplying an inflated estimate of over $7,000 while he was accumulating thousands of

dollars in storage charges was unconscionable.

HEFLIN COMMITTED AN UNCONSCIONABLE ACT BY WAITING FOR OVER SIX

MONTHS BEFORE GIVING MS. MATTHEWS A REPAIR ESTIMATE, ALL THE WHILE

IMPOSING STORAGE CHARGES.

As noted above, under the Attorney General's car repair rules the consumer is

entitled to a repair estimate and several forms of notice concerning that estimate. Heflin

did not send Ms. Matthews any such forms or attempt to give her either an oral or a

written estimate at the time he received her vehicle in January 2008. Instead, while

charging her storage at $14 per day, here is what he did:

Q. Okay. And what is the next thing that happened between you and Ms.Matthews?

A. Well, about six months went by and the car is just sitting there on mylot leaking oil and antifreeze everywhere. And I thought, Well, I'm going to haveto pick up the phone and give her a call and see wllat she wants to do. She hadn'tcome over. She hadn't done anything. And I called her up and said, "What canwe do about this car that we've got sitting here?"

***

Q. Okay. And what was the rest of that conversation? ....

A. Well, I told her that I would like to get her a written estimate togetherand could I fax her an authorization for teardown and could I fax her anauthorization to do that teardown, and she said yes.

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Q. .... Your estimate as to this -- or your inquiry about sending her anauthorization would be this was already summertime? Six months, youmentioned.

A. Late June, July, yeah.

By this time Heflin's storage charges were over $2,500. Reasonable jurors could find

this conduct unconscionable.

D. HEFLIN COMMITTED AN UNCONSCIONABLE ACT WHEN HE PRESENTED FALSE

INFORMATION To THE BMV IN ORDER To OBTAIN TITLE To Ms. MATTHEWS'

VEHICLE.

R.C. 4505.101 provides strict requirements for forcibly obtaining title to a motor

vehicle belonging to another. Heflin's affidavit failed to comply with many of these, and

in fact was full of misrepresentations:

n Heflin listed the value of the vehicle as $4,750, which is more thanthe maximum $2,500 allowed by statute. See R.C. 4501.101(A). Oneappellate court has held that a trier of fact may find a vehicle wasworth more than $2,500 after repairs, which would invalidate thedealer's title. Team Fleet Fin. Corp. v. Mike Kaeser Auto Body &Sales, Inc., ls` Dist. No. C-990630, 2000 WL 376430, *2 (April 14,2000).

n Heflin did not present any evidence that he completed the requestedrepairs and then waited fifteen days to impose charges, as the statuterequires. See Team Fleet, supra; R.C. 4501.101(A).

n Heflin did not demonstrate that Ms. Matthews left her vehicleunclaimed "for fifteen days or more following ... the agreed term ofstorage," as the statute requires in the alternative. See R.C.4501.101(A). hi fact, Heflin testified at deposition that he had nosuch "kind of a specific agreement with Ms. Matthews" for a term ofstorage. Team Fleet, supra, prohibits the use of R.C. 4505.101 inSUMh VlrenlllstalleenJ.

• Heflin did not send his certified mail notice "to the last knownaddress of the owner" as required by the statute, see R.C.4501.101(A), since he knew from numerous conversations and faxesthat Ms. Matthews no longer lived in Cincinnati. In fact, he faxeddocuments to her in Florida in late June 2008 and received herresponse. Reasonable jurors could find that he failed to use thisobvious means of contacting her in March 2009 in order to keep hervehicle for himself without bothering to give the proper notice.

13

^ Heflin also swore to the BMV that he was entitled to storage chargesof $5,726, when, as demonstrated above, the most he would ever havebeen entitled to were those incurred by Airport Towing before Heflinreceived the vehicle, and perhaps storage for some reasonable periodbetween July 23, 2008, and September 30, 2008.

A reasonable jury could consider this conduct regarding Ms. Matthews' title to be another

factor supporting a violation of R.C. 1345.03.

Every piece of evidence set forth above in this record, from the six-month wait

before Heflin sent a tear-down authorization, to the failure to give Ms. Matthews an

estimate, to the charging of $14 per day storage from nine days before he received the

vehicle, to the false affidavit Heflin used to obtain title to her vehicle, points to his inten-

tional violation of the CSPA in order to keep the PT Cruiser for himself The ethical and

legal course of conduct would have been to tell her from the beginning to pick up the

vehicle if she could not pay for repairs, but this would have limited him to a few hundred

dollars in towing and storage charges.

Ms. Matthews made no misrepresentations to Heflin, telling him from day one

that she had to make payment arrangements because she could not pay cash. Her good

faith is apparent from the fact that she continued paying on her loan for 27 months after

Heflin accepted the vehicle, finally paying it off in March of 2010 despite being deprived

of its use.

Heflin's conduct was plainly unconscionable.

Proposition of Law No. III: Heflin failed to follow Ohio's statutoryrequirements for obtaining title; Ms. Matthews therefore has thebetter title and may maintain her conversion claim.

"[C]onversion is the wrongful exercise of dominion over property to the exclusion

of the rights of the owner, or withholding it from his possession under a claim inconsist-

ent with his rights." Joyce v. General Motors Corp., 49 Ohio St.3d 93, 551 N.E.2d 172,

14

175 (1990). Pruitt v. LGR Trucking, Inc., 148 Ohio App.3d 481, 486, 2002-Ohio-722,

774 N.E.2d 273 (lst Dist.). has similar facts and is instructive on this point. There a shop

repaired a boat but the boat owner failed to pay the bill. The shop then attempted to sell

the boat pursuant to statute but failed to provide notice required by R.C. 4585.31, a

statute parallel to the one at issue here, R.C. 4501.101. (Id., ¶ 5) Moreover, the owner

had not abandoned the boat, which the statute defines as leaving it for six months without

permission. (Id., ¶ 10) This Court held that the shop "lawfully withheld the boat from

LGR [the owner], but then unlawfully sold it to the exclusion of LGR's ownership

rights." (Id., ¶ 12) The court also held that "a repairman acts at his own peril when he

sells the repaired property in a dispute over the bill and does not comport with the

controlling statute that outlines the proper sale procedures . . . ." (Id., ¶ 1)

The same thing happened here. Ms. Matthews authorized Heflin to take posses-

sion of her vehicle from Airport Towing in January 2008. When he finally gave her an

estimate on July 23, 2008, she had the choice of authorizing the repairs at $9,874.72 or

requesting the vehicle back unrepaired. She did the latter. Heflin refused to return it,

demanding storage charges of $3,850. He then acquired a title document from the BMV

based upon an affidavit swearing to notice he did not give (as in Pruitt), to abandonment

which did not occur (as in Pruitt), and having several other defects described above.

Under Prri,tt, su.pro, this constitutes conversion. The court below therefore erred in

dismissing Ms. Matthews' conversion claim.I

CONCLUSION

For the foregoing reasons, this Court should take discretionary jurisdiction over

this appeal.

15

Respectfully submitted,

Stephen R? Felson (0038432)215 E. Ninth St., Suite 650Cincinnati, Ohio 45202(513) 721-4900(513) 639-7011 (fax)SteveF8953 ncraol. comAttorney for Plaintiff-Appellant

CERTIFICATION

I hereby certify that a copy of the foregoing was served upon Michael ToddMclntosh, 1136 St. Gregory Street, Suite 100, Cincinnati, OH, 45202, and upon C.Edward Noe, 810 Sycamore St., 4th Floor, Cincinnati, OH, 45202, by ordinary U.S. Mailthis 10"'day of August, 2012.

Stephen R. Felson

' Ms. Matthews does not discuss the derivative claim against the lender, CinFed Credit Union,since she believes that this claim would have to await final disposition of the CSPA conversionclaim.

16

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

GERALDINE MAITHEWS, APPEAL NO. C-iio612TRLSL NO. A-ioou78

Plaintiff-Appellant,

vs. OPINION.

MARK HEFLIN ENTERPRISES, INC.,d.b.a. MARKS AUTO BODY,

MARK HEFLIN,

and

CINFED EMPLOYEES FEDERALCREDIT UNION,

Defendants-Appellees.

Civil Appeal From: Hamilton County Common Pleas Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Final JudgmentEntered

Date of Judgment Entry on Appeal: June 27, 2012

Stephen R. Felson, for Plaintiff-Appellant,

Michael Todd Mclntosh, for Defendants-Appellees Mark Heflin Enterprises, Inc., and MarkHeflin,

Noe & Macleid Co., LPA, and C. Edward Noe, for Defendant-Appellee Cinfed EmployeesFederal Credit Union.

Please note: This case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

{¶1} Plaintiff-appellant Geraldine Matthews appeals the trial court's entry of

summary judgment in favor of defendant-appellee Cinfed Employees Federal Credit Union

on her breach-of-contract claim, and in favor of defendants-appellees Mark Heflin

Enterprises, Inc., and Mark Heflin on her claims for conversion and for violations of Ohio's

Consumer Sales Practices Act ("CSPA") and on Heflin's counterclaim.

{112} Matthews was involved in an automobile accident on December 31, 2007.

Her damaged car was towed to Airport Towing in Kentucky.

{113} On January 9, 2008, Matthews called defendant-appellee Mark Heflin of

Marks Auto Body. At Matthews' request, Heflin arranged to have her car towed to his repair

shop. Heflin paid Airport Towing's towing and storage fees as well as a towing fee for a

second service to have the car delivered to his shop. Matthews made no arrangements to

have the car repaired or moved from Heflin's lot.

{1f4} The car remained on Heflin's lot. Six months later, at the end of June 2008,

Heflin called Matthews to see what she wanted to do with the car. Matthews authorized

Heflin to complete a "tear-down" of her car so that he could provide her with a written

repair estimate.

{¶5} On July 15, 2oo8, Matthews' attorney requested a written repair estimate. On

July 23, 2oo8, Heflin provided a repair estimate of $9,874.72, which included $2,87o for

storage fees.

{116} Two months later, at the end of September 2oo8, Matthews' attorney wrote to

Heflin, declining to have the car repaired and requesting that the car be returned to

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Matthews. On October 1, 2oo8, Heflin informed Matthews' attorney that Matthews owed

him $4,547 for storage fees, towing bills, and the tear-down.

{¶7} The car remained at Heflin's for several more months. At the end of March

2oo9, after sending notice to Matthews and to lienholder Cinfed, Heflin applied for title to

the car. In Apri12oo9, the clerk of courts issued a certificate of title to Heflin.

{¶8} A year later, in February 2010, Matthews sued Heflin for conversion and for

engaging in unconscionable acts in violation of Ohio's CSPA by providing an untimely and

inflated repair estimate, by charging her for storing her car, and by improperly obtaining

title to her car. Heflin counterclaimed for his towing, storage, and tear-down fees.

Matthews later amended her complaint to assert a breach-of-contract action against Cinfed.

{¶9} Heflin and Cinfed filed motions for summary judgment. The trial court

entered judgment in favor of Heflin and Cinfed on Matthews' claims, and in favor of Heflin

on his counterclaim against Matthews. The court awarded Heflin damages in the amount of

$6,653.o6. Matthews now appeals.

Standard of Review

{110} We review a trial court's grant of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102,105,671 N.E.2d 24i (i996). Summary judgment is proper if "(i)

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

matter of la.v; and (3) it appears frQm the evidence that reasonable mint-is can come to 1JUt one

conclusion when viewing the evidence in favor of the nonmoving party, and that conclusion is

adverse to the nonmoving party." Doe v. Shaffer, 9o Ohio St.3d 388, 390, 738 N.E.2d 1243

(2000). . . .

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Matthews' Claims against Heflin

{¶11} In her first assignment of error, Matthews argues that the trial court erred by

entering summary judgment in favor of Heflin on her claim that he had violated the CSPA,

which prohibits suppliers from committing "an unconscionable act or practice in connection

with a consumer transaction." R.C. 1345•03•

{¶12} Heflin contends that no consumer transaction occurred, so the CSPA did not

apply to his dealings with Matthews. We agree. Under the CSPA, a "consumer transaction"

is "a sale, lease, assignment, award by chance, or other transfer of an item of goods, a

service, a franchise, or an intangible, to an individual for purposes that are primarily

personal, family, or household, or solicitation to supply any of these things." In her

appellate brief, Matthews admits that Heflin never contracted with her to repair her car.

However, she claims that Heflin solicited her business "with his tear-down form and

estimate."

{1113} Heflin did not solicit Matthews to supply her with repair service. The record

demonstrates that Matthews requested that her car be transported to Heflin's, and that she

had made no further arrangements for the car to be repaired by him or to be removed from

his lot. Heflin had had to contact her to see what she wanted to do with the car, and she had

authorized the tear-down that was necessary for him to provide a written estimate. Once

Heflin provided the estimate, Matthews' attorney stated that she did not want the repairs to

be performed. At no point did Heflin engage in conduct that was a "solicitation to supply"

his repair service. Because no consumer transaction took place, the CSPA did not apply.

Accordingly, the trial court properly entered summary judgment in favor of Heflin on

Matthews' claim that he had violated the CSPA.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} Matthews also argues that the trial court erred by entering summary

judgment in favor of Heflin on her conversion claim. Conversion is the "wrongful exercise

of dominion over property to the exclusion of the rights of the owner, or withholding it from

his possession under a claim inconsistent with his rights." State ex rel. Toma v. Corrigan,

92 Ohio St.3d 589, 592, 752 N.E.2d 281 (2001).

{¶15} According to Matthews, Heflin acquired title to her car without complying

with the requirements of R.C. 4505.101, which provides:

{¶16} The owner of any repair garage or place of storage in which a

motor vehicle with a value of less than two thousand five

hundred dollars has been left unclaimed for fifteen days or

more following completion of the requested repair or the

agreed term of storage may send by certified mail, return

receipt requested, to the last known address of the owner a

notice to remove the motor vehicle. If the motor vehicle

remains unclaimed by the owner for fifteen days after the

mailing of the notice, and the person on whose property the

vehicle has been abandoned has received the signed receipt

from the certified mail or has been notified that the delivery

was not possible, the person shall obtain a certificate of title to

the motor vehicle in the person's name in the manner provided

in this section.

{¶17} Matthews argues that Heflin unlawfully gained title to her car. She contends

that, in his affidavit accompanying his application to the Ohio Bureau of Motor Vehicles

("BMV"), he listed the vehicle's value as $4,75o, an amount higher than the $2,50o allowed

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OHIO FIRST DISTRICT COURT OF APPEALS

by R.C. 4505•101. Matthews' reading of Heflin's affidavit is incomplete. The wholesale

value of the vehicle was $4,75o. But Heflin was required to deduct the estimated cost of

repairs to restore the vehicle, as well as his actual expenses for towing and storage. After

those deductions, the value of the vehicle was negative $3,197, well under the statutory

maximum. See Comm Star Community Star Credit Union v. Nickson, 9th Dist. Nos.

07CAoo9o75 and 07CAo09112, 2oa7-Ohio-7036.

{1118} Matthew also argues that Heflin had failed to demonstrate that her vehicle

had been unclaimed for more than 15 days, as required by R.C. 4505.1oi. But Heflin waited

more than five months from the last communication by Matthews' attorney before sending

the required notice to Cinfed and to Matthews, and then Heflin waited another month

before filing his application for the title.

{¶19} Because no issue of fact remained to be determined with respect to Heflin's

compliance with R.C. 4505•101, the trial court properly entered summary judgment in his

favor on Matthews' conversion claim. Accordingly, we overrule the first assignment of

error.

Heflin's Counterclaim against Matthews

{1[20} In her second assignment of error, Matthews argues that the trial court erred

by entering summary judgment in favor of Heflin on his counterclaim for towing and

storage charges. The trial court awarded him the amount of $6,653.o6 that he demanded in

his counterclaim. But Heflin's acquisition of title to Matthews' car pursuant to R.C.

4505.ioi had extinguished his claims for towing and storage charges. The amounts owed by

Matthews for towing and storage had been deducted from the car's wholesale value, thereby

allowing Heflin to apply for the car's title. The trial court's award of damages to Heflin

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OHIO FIRST DISTRICT COURT OF APPEALS

essentially allowed him a double recovery. Accordingly, we sustain the second assignment

of error, reverse the trial court's judgment in favor of Heflin on his counterclaim, and vacate

its award for damages on the counterclaim. We enter judgment in favor of Matthews on

Heflin's counterclaim.

Matthews' Claim against Cinfed

{¶21} In her third assignment of error, Matthews argues that the trial court erred by

entering summary judgment in favor of Cinfed on her breach-of-contract claim. Matthews

had executed an "Open End Credit Agreement" with Cinfed, under which Cinfed took a

security interest in her car to secure its loan to her. In her complaint, Matthews asserted

that the agreement required Cinfed to release its lien and supply her with an original title

document. Matthews alleged that Cinfed "purported to act in accordance with its

obligations; however, the title it supplied to Ms. Matthews is or may be defective in that

Defendant Mark Heflin now claims ownership of the vehicle."

{¶22} To prevail on a breach-of-contract claim, a plaintiff must establish the

existence of a contract, performance by the plaintiff, breach by the defendant, and damage

or loss to the plaintiff. See Brunsman v. W. Hills Country Club, 151 Ohio ApP.3d 719, 2003-

Ohio-891, 785 N.E.2d 794, ¶ ii (1st Dist.). When the terms of a contract are clear and

unambiguous, a trial court may not go beyond the plain language of the agreement to

de+e*mine ±he in+ent nf ±he part_ies, See Alexander v. Buckeye Pipe T ipv Co„ n3 Ohio St,2d

241, 246, 374 N.E.2d 146 (1978).

{1123} Matthews has failed to point to any contractual provision that required

Cinfed to release its lien or to supply her with a title. Because no issue of fact remained with

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OHIO FIRST DISTRICT COURT OF APPEALS

respect to Matthews' claim against Cinfed, the trial court properly entered summary

judgment in Cinfed's favor. We overrule the third assignment of error.

{¶24} Consequently, we reverse the trial court's judgment in favor of Heflin on his

counterclaim, and vacate its award of damages on the counterclaim. And we enter

judgment in favor of Matthews on Heflin's counterclaim. In all other respects, the judgment

of the trial court is affirmed.

Judgment accordingly.

SUNDERMnNN, P.J., HENDON and FYSCHER, JJ.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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