IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Adel Al-Najjar,
:
Plaintiff-Appellant,
:
v.
:
No. 99AP-1391
R & S Imports, Inc. et al.,
:
(RE
GULAR CALENDAR)
Defendants-Appellees.
:
O P I N I O N
Rendered on August 29, 2000
Marcell Rose Anthony, for appellant.
Stephen Mansfield, for appellee R & S Imports, Inc., D/b/a
Marshalls Cars & Parts.
Whann & Associates, and Jay McKirahan, for appellee Ricart
Automotive.
APPEAL from the Franklin County Court of Common Ple as.
LAZARUS, J.
Plaintiff-appellant, Adel Al-Najjar, appeals from the decision and entry of the
Franklin County Court of Common Pleas granting summ ary judgment in favor of
defendants-appellees, R & S Imports, Inc., d/b/a/ M arshall’s Cars and Parts ("Marshall’s")
and Ricart Ford, Inc., d/b/a/ Ricart Automotive ("R icart"). For the reasons that follow, we
affirm.
No. 99AP-1391
2
Appellant is the owner of a 1991 Mitsubishi 3000G T automobile. In early
June 1997, appellant contacted Marshall’s and spoke to Erik Stearns requesting that
Marshall’s locate a used 3.0-liter V-6 engine with
dual turbochargers for a Mitsubishi
3000GT automobile.
Within several days, Marshall’s
located such an engine, and
Stearns advised appellant that the cost of the engi ne would be $2,500 plus tax. Appellant
agreed to purchase the engine and requested that it be shipped to Solomon’s Automotive
in Ashland, Ohio, for installation in his automobil e. The engine was shipped from a
salvage yard in Tennessee and arrived at Solomon’s approximately ten days later. Rick
Miller, an independent contractor using Solomon’s f acilities, undertook the project of
installing the engine in appellant’s automobile.
Miller soon found himself in "over his head," and
told appellant that he could
not complete the installation. At Miller’s suggest ion, appellant had his automobile towed
to Ricart. The automobile was not drivable when it
was delivered to Ricart. Some parts
were shipped to Ricart in boxes. Ricart was not in structed to evaluate the engine, but,
rather, to complete the installation process and pu t the vehicle back together. Thomas
David Price, an authorized Mitsubishi technician, b egan putting the vehicle back together.
Price testified that installation of a 3000 GTE Mit subishi turbo engine is exceptionally
complex, rating it a "ten" in difficulty on a scale
of one-to-ten. (Price Depo., at 52.)
During this process, Price discovered that parts
of the engine had not been
shipped with the vehicle. (Price Depo., at 28.) P rice also testified that the prior work had
been done improperly including missing bolts, missi ng motor mounts, and parts installed
out of order. (Price Depo., at 67.) Moreover, app ellant informed Price that appellant’s
friend had the engine apart, and it had been left o utside. (Price Depo., at 22.) Price
No. 99AP-1391
3
discovered that the engine was damaged due to moist ure that had gotten in a cylinder.
(Price Depo., at 80.) Valves in the head were dama ged because of a bad timing belt and
a faulty tensioner. (Price Depo., at 80.)
Ricart's employees contacted appellant regarding
the need for additional
repairs and missing parts. Appellant was also told
that the engine could not function
properly without the additional repairs. It was re commended that he have the repairs
completed before operating the vehicle. Appellant finally requested that Ricart put the
vehicle together so that he could drive the car.
In his deposition, appellant stated:
Q. *** Ricart advised you about the status of the v ehicle and
you told them to go ahead and finish whatever they
were
doing; correct?
A. Well, this is what happened. After the work was
done, the
last things that they were working on, they said th at we’re
going to try to fix it. They didn’t -- They said --
From the
beginning, they said we’re going to fix it, it’s go ing to be
running, everything is going to be running for you.
But after
the work was done, they said, well, you have bad he ads, you
have to send them out to a machine shop. And I said , okay,
I’m going to try to see what I can do. And I brough
t the heads
in after a while, and they did install it. I told t hem -- They did
not tell me that there’s nothing that they can’t do .
But after they installed the heads, they found that one or two
pistons, I don’t recall, were still not shooting we ll. That’s when
I said, okay -- It was already installed. I said,
okay, just hook
up the last things, whatever, electricity, accessor ies, things
like that, so that I can take the car. Because I d
on’t want to
leave it there any more.
Q. Right.
No. 99AP-1391
4
A. That’s when I said go ahead and do it. [Depo. o
f Adel Al-
Najjar at 64.]
1
Appellant drove the vehicle home and immediately
began experiencing
problems. The car sat idle for approximately one y ear. One year later, appellant took the
vehicle to another repair facility, Paramount Autom otive. On the advice of Paramount, the
engine was shipped to Robert Zvansky, who partially rebuilt the engine. The engine was
returned to Paramount, and Lajos Silberstein, who w orked for Paramount until it ceased
doing business, was in the process of installing th e rebuilt engine into appellant’s vehicle.
Appellant subsequently filed the instant lawsuit
against Marshall’s and
Ricart alleging fraud, breach of contract, breach o f warranty, negligent and intentional
misrepresentation, unconscionable contract, violation of the Ohio Consumer Sales
Practices Act, breach of fiduciary relationship, an d failure to perform work in a
workmanlike manner. Underlying all these claims we re allegations that Marshall’s sold
appellant a defective engine, and Ricart improperly
installed the engine.
Further,
appellant alleged that Ricart failed to inform appe llant of the defective engine and that,
unless the engine were rebuilt, the vehicle would n ot run normally even after Ricart
completed the installation and the repairs authoriz ed by appellant.
1
Appellant’s deposition was never filed with the co urt. Ricart attached portions of the deposition to
its
motion for summary judgment, but the court reporter ’s certification was not included, and it was not
attached as an exhibit to an affidavit. A depositio n transcript must be authenticated before it can be
considered as legally acceptable evidence for summa ry judgment purposes. Trimble-Weber v. Weber
(1997), 119 Ohio App.3d 402, 406. However, appellan t never objected to the trial court’s consideration of
the excerpts, and, in fact, appellant cites to the
deposition in his appellate brief, and in contraven tion of
App.R. 9, has included additional pages from the de position as an attachment to his appellate brief. A s
there was no objection before the trial court, the
trial court apparently exercised its discretion and
considered the deposition excerpts. In light of all
these facts, we consider any alleged error that th e
material does not comply with Civ.R. 56(C) to be wa ived.
No. 99AP-1391
5
Both Marshall’s and Ricart filed motions for summ ary judgment. The trial
court granted both motions on November 9, 1999. On
appeal, appellant argues the trial
court erred in granting summary judgment.
2
Appellant first argues that the trial court improp erly shifted the burden to
appellant to prove his case by a preponderance of t he evidence at the summary judgment
stage. We disagree.
It is well-settled that when reviewing a motion fo r summary judgment, an
appellate court reviews the judgment independently
and without deference to the
previous determination by the trial court.
Midwest Specialties, Inc. v. Firestone Tire &
Rubber Co. (1988), 42 Ohio App.3d 6. The standard of review i n this court is de novo.
AAAA Enterprises, Inc. v. River Place Community Urb an Redevelopment Corp. (1990),
50 Ohio St.3d 157.
A court is without authority to grant summary judg ment unless it can be
demonstrated that: (1) No genuine issue as to any m aterial fact remains to be litigated; (2)
the moving party is entitled to judgment as a matte r of law; and (3) it appears from the
evidence that reasonable minds can come to but one
conclusion, and viewing such
evidence most strongly in favor of the party agains t whom the motion for summary
judgment is made, that conclusion is adverse to tha t party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267; Civ .R. 56(C). "[T]he moving party bears
the initial responsibility of informing the trial c ourt of the basis for the motion, and
identifying those portions of the record *** which
demonstrate the absence of a genuine
2
Appellant failed to comply with App.R. 16(A)(3) an d include a statement of the assignments of error
presented. However, the brief refers to the decisio n and entry of the trial court sustaining Marshall’ s and
Ricart’s motions for summary judgment.
No. 99AP-1391
6
issue of fact on a material element of the nonmovin g party's claim."
Dresher v. Burt
(1996), 75 Ohio St.3d 280, 292. Once the moving pa rty meets its initial burden, the
nonmovant must then produce competent evidence show ing that there is a genuine issue
for trial. Id.
In this case, the trial court reviewed the pleadi ngs, motions, and evidentiary
materials in the case file and found there did not
exist any genuine issues of material fact.
Specifically, the trial court found that appellant had presented no evidence that the engine
in question was defective at the time it left Marsh all’s hands. (Decision and Entry of
November 9, 1999, at 8.) Similarly, with respect t o Ricart, the trial court found that no
genuine issues of material fact remained to be trie d against Ricart because the
uncontroverted evidence was that appellant knew the
engine in his automobile was
performing improperly and that Ricart informed appe llant of this fact.
Appellant next argues that the trial court failed
to consider the affidavits
from appellant’s two experts. Appellant claims tha t these affidavits show that genuine
issues of material fact exist as to whether the eng ine sold by Marshall’s was defective at
the time of sale and that Ricart caused further dam age to the engine as a result of
improper installation.
First, there is no evidence that the trial court
failed to consider appellant’s
evidentiary materials. In fact, the trial court cl early indicated in its decision and entry that
"[a] thorough review of the documents submitted to
the Court, both in support of and in
opposition to the instant Motion, and the evidentia ry materials relied upon by the parties
indicates that defendant Ricart’s Motion is well-fo unded." Similarly, with respect to
Marshall’s, the trial court stated:
No. 99AP-1391
7
The filings, pleadings, and evidentiary materials c ontained in
the case file currently before the Court indicate t hat plaintiff
has indeed been damaged as a result of a malfunctio ning
engine. Those same filings and evidentiary material s,
however,
indicate
that
plaintiff
cannot
prove
by
a
preponderance of the evidence that said engine was defective
at the time it left defendant R&S’s hands. In orde r to agree
with plaintiff and award the damages he seeks, a ju ry would
be required to engage in a great deal of speculatio n. ***
Second, appellant has failed to recognize that, a fter construing those
affidavits in a light most favorable to the nonmovi ng party, they still do not support a
genuine issue of material fact. Robert Zvansky, wh o partially rebuilt appellant’s engine,
opined that, at the time he received the engine, it
had a defective crankshaft, it had been
exposed to the elements as evidenced by rusting in
the cylinders, and it was not usable in
the condition it was in. However, at the time Zvan sky received the engine, it had been
disassembled, passed through the numerous mechanics and technicians, appellant had
driven it, and it had sat idle for approximately on e year. Thus, Zvansky’s opinion that the
engine was defective at the time it was sold to app ellant lacks an evidentiary foundation.
The same problems arise with appellant’s other ex pert. After Zvansky
partially rebuilt the engine and returned it to Par amount, Lajos Silberstein was asked to
reassemble the vehicle in November 1998. Silberste in opined that Ricart Automotive did
not adjust the timing belt properly. However, like Zvansky, Silberstein had no knowledge
of what happened to the car from the time appellant
drove it away from Ricart until he was
given the job of reassembling the vehicle. Silbers tein testified as follows:
Q. With respect to the work that you then did for M r. Al-Najjar,
do you know who took the engine out of the car and
had it on
the floor at Paramount?
No. 99AP-1391
8
A. Well, there’s several people worked over there a t
Paramount before I got there; and, apparently, it w as a project
that everybody was involved in removing the engine and then
sending it out and having it rebuilt.
***
A. People were coming and going over there all the
time ***[.]
[Silberstein Depo., at 15, 16.]
Silberstein was not the person who took the engin e out of the car. He did
not hear or see it run, he did not know what parts
were there or what was missing or
broken before it was taken apart. Moreover, Mr. Si lberstein testified that "Marv," one of
the mechanics at Paramount who worked on the car wa s not, in his expert opinion,
qualified to be working on the car.
Id. at 33-34.
In summary, appellant has failed to show the exis tence of a genuine issue
of material fact because he can point to no evidenc e that Marshall’s sold him a defective
engine. Because Rick Miller and Solomon’s had poss ession of the engine prior to Ricart,
appellant can point to no evidence that Ricart dama ged the engine or failed to tell
appellant that the vehicle was performing improperl y and would continue to do so when
they finished putting his vehicle back together. W ithout a showing on these threshold
issues, appellant cannot sustain any of his claims
against Ricart and Marshall’s.
Accordingly, the trial court did not err when it g ranted summary judgment.
Based on the foregoing, appellant’s two assignmen ts of error are overruled,
and the judgment of the Franklin County Court of Co mmon Pleas is affirmed.
Judgment affirmed.
BOWMAN, P.J., and BRYANT, J., concur.
___________