Fletcher v. Don Foss of Cleveland, Inc.

Dyke, Chief Justice,

concurring separately.

I concur in the majority opinion but write separately to delineate the specific conduct on the part of the appellant which rendered the instant transaction deceptive and, hence, violative of the Consumer Sales Practice Act. (R.C. 1345.02[B][10].)

My concern with the majority’s analysis is that it sweeps too broadly, implicating as deceptive certain dealer practices which are not necessarily unfair or deceptive.

The majority holds that the “appellees were given a certificate of limited warranty which by definition nullified the ‘AS IS — NO WARRANTY’ provision and also was misleading, as you cannot make by plain meaning of the English language ‘NO WARRANTY’ and ‘LIMITED WARRANTY’ to be consistent with each other.” The majority suggests that the provision of these documents constitutes a deceptive sales practice.

The record demonstrates, however, that the appellees were given a “Free Limited Warranty” on the drive train of their “As Is — No Warranty” vehicle. The trial court also regarded this distinction in its findings of fact, at paragraph two of its judgment entry, where it stated: “That Plaintiffs’ Exh. # 2 is a Free Limited Warranty on the Drive Train (50/50) of the ‘As Is’ — ‘No Warranty’ vehicle in question.”

The mere provision of an “As Is — No Warranty” purchase agreement along with a “Free Limited Warranty” on a specific part of an automobile does not

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necessarily constitute an unfair or deceptive sales practice violative of R.C. 1345.02(B)(10).

In the instant case, the appellees testified that they were confused by these documents and this court does not doubt their confusion. However, documents such as those provided to the appellees do not automatically or necessarily operate to “nullify” one another. If properly drafted and clearly explained, these documents can reasonably be construed to mean that an automobile dealer is selling and a consumer is purchasing an automobile which is completely unwarranted except for coverage on a limited number of certain, specific parts.

There is nothing false or misleading about selling an automobile which carries no warranty, if the consumer is clearly made to understand that the automobile is being sold based upon that condition. There is also nothing false or misleading about offering a clearly defined and well-explained warranty, free or at cost, which covers certain specified repairs on the generally unwarranted vehicle.

The majority also holds that the appellant’s act of paying for the repair of the automobile which broke down within minutes of the sale is evidence of a withheld warranty.

In my opinion, neither of the above cited gestures constituted unfair or deceptive sales practices.

The provision of a limited warranty on the drive train of appellees’ automobile is not necessarily inconsistent with the sale and purchase of a generally unwarranted vehicle. The repairs undertaken by the appellant address its blatant breach of an implied warrant of merchantability. The repairs do not necessarily establish the existence of a separate warranty on all parts for an extended period of time.

The specific conduct which rendered the instant transaction deceptive was the statement that the appellant made to the appellees when the appellees presented their chronically defective automobile for repair, thirty-five days after the date of purchase.

At that time, the appellant told the appellees that their “thirty day warranty or privilege” had elapsed.

This retroactive and untimely disclosure of the existence of a thirty-day warranty is the type of deceptive conduct which R.C. 1345.02(B)(10) seeks to sanction.

Without appellant’s admission of the existence of a “thirty day warranty or privilege,” there would have been no evidence that a deceptive sales practice had occurred. There would, however, have been an unconscionable breach of the implied-warrant of merchantability.