Petition for Writ of Certiorari — Derrick Martin King, Petitioner v. Budget Car Mart, LLC

[Cite as King v. Budget Car Mart, L.L.C., 2023-Ohio-2?56.]

STATE OF OHIO

IN THE COURT OF APPEALS

NINTH JUDICIAL DISTRICT

)

)ss:

COUNTY OF SUMMIT

)

DERRICK MARTIN KING

C.A. No.

30293

Appellant

v.

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT. OHIO

CASE No.

CV 2021-07-2074

BUDGET CAR MART, LLC

Appellee

DECISION AND JOURNAL ENTRY

Dated: August 9, 2023

CARR, Judge.

{f 1}

Plaintiff-Appellant Derrick Martin King appeals, pro se, the judgment of the

Summit County Court of Common Pleas. This Court affirms.

I.

{f2}

On April 28, 2021, after a short test drive around the dealer parking lot, Mr. King

purchased a used 2010 Chevy Malibu with 138,867 miles on it for $4,635.01 from DefendantAppellee Budget Car Mart, LLC (“BCM”).1 The purchase agreement signed by Mr. King states

that:

ALL WARRANTIES, IF ANY, BY A MANUFACTURER OR SUPPLIER

OTHER THAN DEALER ARE THEIRS, NOT DEALER[’S] AND ONLY SUCH

MANUFACTURER OR OTHER SUPPLIER SHALL BE LIABLE FOR

PERFORMANCE UNDER SUCH WARRANTIES UNLESS DEALER

FURNISHES PURCHASER] WITH A SEPARATE WRITTEN WARRANTY

UK sERvIUli UUNlKAUl lVIADti BY UBALilK UiN 115 UW1N nEllALt\

1

I

BCM asserts the correct entity is CTTT Enterprises, LLC, dba Budget Car Mart.

However, Mr. King disputed this in the trial court and the trial court declined to resolve the issue.

For ease of discussion, we will refer to Defendant-Appellee as “BCM.”

A-l

2

DEALER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR

IMPLIED,

INCLUDING

ANY

IMPLIED

WARRANTIES

OF

MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN

CONNECTION WITH THE VEHICLE AND ANY RELATED PRODUCTS

AND SERVICES SOLD BY DEALER. DEALER NEITHER ASSUMERS NOR

AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY

IN CONNECTION WITH THE SALE OF THE VEHICLE AND THE RELATED

PRODUCTS AND SERVICES. IN THE EVENT THAT A WARRANTY IS

PROVED BY DEALER OR A SERVICE CONTRACT IS SOLD BY DEALER

ON ITS OWN BEHALF, ANY IMPLIED WARRANTIES ARE LIMITED IND

DURATION TO THE TERM OF THE WRITTEN WARRANTY IS PROVIDED

BY DEALER OR A SERVICE CONTRACT IS SOLD BY DEALER ON ITS

OWN BEHALF.

ANY IMPLIED WARRANTIES ARE LIMITED TN

DURATION TO THE TERM OF THE WRITTEN WARRANTY/SERVICE

CONTRACT.

{f3}

In addition, a document titled “BUYER[’S] GUIDE” was attached to the window

of the car Mr. King purchased. It states that the warranties for the vehicle are “AS IS - NO

DEALER WARRANTY[.]” The document also indicates that “jsjpoken promises are difficult to

enforce. Ask the dealer to put all promises in writing. Keep this form.” Mr. King was also

provided an “as-is” disclosure form. That form provides that the “Company makes no express

warranties or implied warranties about the conditions of the vehicle. It also means that you, as the

buyer, take all risks as to the quality of the vehicle.” It goes on to advise that “[a]fl customers are

encouraged to have a mechanic of their choice inspect the vehicle before a decision is made to

purchase it. Once it is sold, it is owned by the purchaser, and the sale is final. The Company will

not repair the vehicle or offer a refund.” Mr. King also initialed 5 statements, indicating that he

acknowledged them and agreed to them.

Those statements were: (1) “The Company has

recommended that I/We inspect the vehicle or have an automobile service professional inspect the

vehicle prior to purchase. If the vehicle was inspected, the party that inspected is the only party

that described the condition of the vehicle, not an employee of The Company[;]” (2) “I, the

customer buying the vehicle, understand I should not rely on any verbal representations about this

A-2

3

vehicle[,]” (3) “[i]f the vehicle was test driven, [n]o employee of the Company has attempted to

diagnose any issue that was noticed concerning the vehicle. All vehicle inspections must be made

by a professional of the customer’s choieef;}” (4) “[o]nee the vehicle leaves the lot after the

purchase is agreed to, any and all problems relating to the vehicle are my/our responsibility. For

example, if the car will not start I/we must have it fixed at my[] own expense[;]” and (5) “I

understand that I am buying a vehicle ‘As Is[,]’ and after I leave the dealership today, anything

that goes wrong or needs repaired on the vehicle, 1 am buying wiii be at my expense.”

4}

Approximately 30 days after the purchase, Mr. King noticed a noise whenever he

applied the brakes. TireChoice Auto Service Centers concluded that the car needed brake rotors

and pads and provided an estimate of $685.95.

fl|5}

In July 2021, Mr. King filed his initial complaint against BCM. He alleged

violations of the Ohio Consumer Sales Practices Act, Breach of Express Warranty of

Condition/Breach of Contract, Breach of Implied Warranties of Merchantability and Fitness for

Ordinary

Purpose/Warranty

of

Fitness

for

a

Particular

Purpose,

Fraud

and

Misrepresentation/Concealment/Negiigent Misrepresentation, Unconscionability, and Breach of

Express or Implied Contract/Breach of Covenants of Good Faith and Fair Dealing.

{f6}

On September 15, 2021, Mr. King had the vehicle repaired at L.A. Motors. The

repairs totaled $1,281.01 and included replacement of brake pads, rotors, hardware, calipers, hoses,

and wheel bearings. Later that month, L.A. Motors replaced the air conditioner compressor and

belt for $320.25.

{f7}

On November 8, 2021, Mr. King filed an amended complaint against BCM. Mr.

King alleged violations of the Ohio Consumer Sales Practices Act, Fraud and

Misrepresentation/Concealment/Negligent Misrepresentation, and Breach of Express or Implied

A-3

4

Contract/Breach of Covenants of Good Faith and Fair Dealing. In December 2021, BCM filed an

answer.

If8}

On January 31, 2022, BCM filed a motion for summary judgment as to all of Mr.

King’s claims. In support of the motion, BCM filed the transcript of Mr. King’s deposition and

the accompanying exhibits and an affidavit along with exhibits mentioned in the affidavit. Mr.

King filed a motion to strike the filing of his deposition because the notary public did not appear

in person, and instead appeared via Zoom. BCM opposed the motion, and the motion was

ultimately denied. Mr. King filed a brief in opposition to BCM’s motion for summary judgment

and also a motion for summary judgment. BCM opposed the motion and also filed a motion to

strike certain exhibits Mr. King filed in support of his brief in opposition to BCM’s motion for

summary judgment. BCM argued that the exhibits were hearsay and improper summary judgment

evidence. Mr. King opposed the motion, but the trial court ultimately granted the motion to strike.

{f9}

In March 2022, Mr. King filed a motion seeking, inter alia, a protective order

preventing BCM from questioning Mr. King about a prior criminal offense and preventing it from

inquiring into areas Mr. King previously objected to. Mr. King also tiled a motion to disqualify

counsel for BCM based upomwhat Mr. King viewed as personal attacks against him by one of the

attorneys representing BCM and the other attorney’s failure to prevent the personal attacks. BCM

opposed the motion to disqualify. It was subsequently denied.

ft|10} In April 2U22, the trial court granted BCM’s motion for summary judgment and

denied Mr. King’s motion for summary judgment.

{f 11} Mr. King has appealed, raising five assignments of error, some of which will be

addressed out of sequence to facilitate our review. Mr. King has additionally filed a motion for

this Court to take judicial notice of certain disciplinary filings related to one of BCM’s attorneys.

A-4

5

Counsel for BCM does not oppose this Court doing so. Given the foregoing, the Court takes

judicial notice of the filings. See Davis v. Marcotte, 10th Dist. Franklin No. 10AP-361, 2011Qhio-1189f f 33 (noting that “courts routinely take judicial notice of disciplinary proceedings and

dispositions}]”).

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING BCiVFS MOTION TO STRIKE

THE DOCUMENTS FROM THE BBB OF AKRON AND THE OHIO

ATTORNEY GENERAL.

fl[12} Mr. King argues in his first assignment of error that tlW trial court erred in granting

BCM’s motion to strike documents from the BBB and the attorney general.

{^13} 'This Court applies an abuse of discretion standard in reviewing a trial court’s

determination regarding a motion to strike.” Wicks v. Lover’s Lane Market, 9th Dist. Summit No.

30019, 2022-Ohio-2652, ^ 7. An abuse of discretion implies that the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

{^14} On appeal, Mr. King argues that BCM waived any objection to the use of the

documents because BCM did not timely file a motion to quash the subpoena for those documents

as provided for by Civ.R. 45(C)(3). However, we fail to see how BCM’s failure to file a motion

to quash, assuming it was proper tor it to do so, limited its ability to later object to the materials

once Mr. King submitted them in support of his opposition to BCM’s motion for summary

judgment.

{f 15} Civ.R. 26(B)(1) establishes a broad scope for pretrial discovery; it provides that,

“[ujnless otherwise limited by court order, * * * [p]arties may obtain discovery regarding any

A-5

6

nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs

of the case, considering the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.” Civ.R. 26(B)(1). Nonetheless, it also indicates

that “[information within this scope of discovery need not be admissible in evidence to be

discoverable.” Civ.R. 26(B)(1). In other words, the documents that can be obtained under

discovery are most often more extensive than the documents that are admissible. Thus, the fact

that BCM did not object to Mr. King’s discovery of the documents did not mean that it waived its

right to object to Mr. King’s subsequent attempt to introduce those documents as evidence.

As Mr. King does not challenge the trial court’s ruling on any other basis within

this assignment of error, we overrule his assignment of error.

{f!7} Mr. King’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN DENYING KING’S MOTION TO STRIKE

THE FILING OF THE JANUARY 12, 2022 DEPOSITION TRANSCRIPT.

{f 18} Mr. King asserts in his second assignment of error that the trial court erred in failing

to strike the filing of his deposition transcript. Specifically, he argues that the deposition violated

Civ.R. 28 as it did not take place in the physical presence of a notary public.

{f!9} As discussed above, “[tjhis Court applies an abuse of discretion standard in

reviewing a trial court’s determination regarding a motion to strike.” Wicks, 2022-Ohio-2652, at

H7.

fl[20} Here, at the time of the deposition, Mr. King did not object to the fact that the notary

public was appearing by Zoom and was not physically present in the room. While Mr. King did

A-6

7

later complete an errata sheet objecting to the deposition on the grounds that it did not take place

in the physical presence of the notary, he did not raise any issue at the time of the deposition.

Civ.R, 32(D)(3)(b) provides that “Fejrrors and irregularities occurring at the oral examination in

the manner of taking the deposition, in the form of the questions or answers, in the oath or

affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed,

or cured if promptly presented, are waived unless reasonable obj ection thereto is made at the taking

of the deposition.”

{^21} While the trial court additionally cited to administrative actions of the Supreme

Court of Ohio in response to the COVID-19 pandemic in support of its decision to deny Mr. King’s

motion, the fact that Mr. King failed to object to the absence of the notary in the room at the time

of his deposition was a sufficient basis for the trial court to overrule his motion. Accordingly, this

Court need not address any constitutional challenges Mr. King attempts to raise in this assignment

of error related to those administrative actions and the pandemic. See State v. Talty, 103 Ohio

St.3d 177, 2004-Ohio-4888,

9 (“It is well settled that this court will not reach constitutional

issues unless absolutely necessary.”). Mr. King has not demonstrated that the trial court abused

its discretion.

{%22} Mr. King’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DENYING KING’S MOTION TO

DISQUALIFY [BCM’S COUNSEL],

{f23} Mr. King argues in his third assignment of error that the trial court erred in failing

to disqualify BCM’s counsel.

fl|24} A trial court’s ruling on a motion to disqualify counsel is reviewed for an abuse of

discretion. Ceccoli v. Budd, 9th Dist. Medina No. 19CA0086-M, 2020-0hio-4176,f 10. An abuse

A-7

8

of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore, 5 Ohio St.3d at 219.

{€25} “{Al court has inherent authority to supervise members of the bar appearing before

it; this necessarily includes the power to disqualify counsel in specific cases.

However,

disqualification of a party’s attorney is a drastic measure [that] courts should hesitate to impose

except when absolutely necessary because it deprives a party of the attorney of their choosing.

The trial court should disqualify counsel if, and oniy if, the [c]ourt is satisfied that real harm is

likely to result from failing to [disqualify].” (Internal quotations and citations omitted.) Sherwood

v. Eberhardt, 9th Dist. Lorain No. 18CA011286, 2019-Ohio-4213, *(|17.

{^[26} On appeal, Mr. King argues that BCM’s counsel’s personal attacks against Mr.

King warranted that counsel be disqualified. This Court does not condone personal attacks against

other litigants or attorneys. Nonetheless, Mr. King has not demonstrated that the trial court abused

its discretion in denying his motion as he has not shown that failing to disqualify BCM’s counsel

would likely result in real harm. See id. The trial court, in its ruling denying Mr. King’s motion,

noted that both Mr. King and BCM’s counsel had inserted unnecessary commentary into the

litigation. The trial court also directed all parties to conduct themselves with civility and to refrain

from further unnecessary commentary. Mr. King has not demonstrated that the trial court’s ruling

was unreasonable under the circumstances. Moreover, the record does not demonstrate that Mr.

King has been prejudiced by any failure of the trial court to disqualify BCM’s counsel. See Civ.R.

61.

fl[27} Mr. King’s third assignment of error is overruled.

ASSIGNMENT OF ERROR V

A-8

9

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

FAVOR OF BCM AND DENYING THE MOTION FOR A SUMMARY

JUDGMENT IN KING’S FAVOR.

{f28} Mr. King argues in his fifth assignment of error that the trial court erred in granting

summary judgment in favor of BCM and denying his motion for summary judgment.

{f29} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102,105 (1996). This Court applies the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving any

doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12

(6th Dist. 1983).

{f30} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(I) No genuine issue as to any material fact remains to be litigated; (2) the moving

party is entitled to judgment as a matter 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 against whom the motion for summary judgment

is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

{f3I} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,292-293 (1996). Specifically,

the moving party must support the motion by pointing to some evidence in the record of the type

listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of supporting its motion for

summary judgment with acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that

the non-moving party may not rest upon the mere allegations or denials of the moving party’s

pleadings. Id. at 293. Rather, the non-moving party has a reciprocal burden of responding by

A-9

io

setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated at

trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

{%32} First Mr, King asserts that the exhibits that were stricken were proper evidence as

they were business records and thus admissible. While this argument is outside the stated scope

of his assignment of error, we will nonetheless briefly address it.

{^33} “To qualify for admission under Evid.R. 803(6), a business record must manifest

four essential elements: (i) the record must be one regularly recorded in a regularly conducted

activity; (ii) it must have been entered by a person with knowledge of the act, event or condition;

(iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must

be laid by the custodian of the record or by some other qualified witness.” (Internal quotations

and citations omitted.) Fed. Nail Mtge. Assn. v. McFerren, 9th Dist. Summit No. 28814, 2018Ohio-5319, Tf 16. “In order to be admissible under this hearsay exception, the business records

must be authenticated by evidence sufficient to support a finding that the matter in question is what

the proponent claims it to be[.]” (Internal quotations and citations omitted.) Id. at| 17. “A witness

authenticating a business record must be familiar with the operation of the business and with the

circumstances of the preparation, maintenance, and retrieval of the record in order to reasonably

testify on the basis of this knowledge that the record is what it purports to be, and was made in the

ordinary course of business. Evid.R. 803(6) does not require personal knowledge of the exact

circumstances of the preparation and production of the document or of the transaction giving rise

to the record.” (Internal quotations and citations omitted.) Id.

{f34} Here, Mr. King has not demonstrated that the alleged business records were

properly authenticated and thus he has not established that they were admissible under Evid.R.

803(6). Additionally, we note that some of these documents accompanied Mr. King’s deposition

A-10

11

transcript as exhibits as well as his own motion for summary judgment. There was no motion to

strike those documents; thus, some of them are part of the record.

{f35} Mr, King’s amended complaint contained three causes of action: (1) alleged

violations of the Ohio Consumer Sales Practices Act; (2) fraud, misrepresentation, concealment,

and/or negligent misrepresentation; and (3) breach of express or implied contract and/or breach of

covenants of good faith and fair dealing. In the amended complaint, Mr. King asserted that the

salesperson stated the vehicle was in excellent condition, while at his deposition, Mr. King

maintained that the salesperson said the car was perfect. With respect to the Ohio Consumer Sales

Practices Act claim, Mr. King asserted that misrepresentations were made that the vehicle had

performance characteristics, uses or benefits it did not and that the vehicle was of a particular

standard, quality, grade, or model when it was not. Additionally, he claimed that the vehicle was

sold with knowledge that the consumer would be unable to receive a substantial benefit from it,

that a misleading statement of opinion was made which the consumer was likely to rely upon to

his detriment, and that the vehicle sold was known to be in an unsafe or unreliable condition. As

to Mr. King's fraud claim, Mr. King maintained that BCM, through its employees, made

statements indicating that the vehicle would provide Mr. King with reliable transportation. Mr.

King further alleged that BCM failed to disclose that the vehicle was in need of major repair and

that it had received information from Fred Martin Superstore, operated by Fred Martin Motor

Company, about the condition of the vehicle. With respect to Mr. King’s third cause of action,

Mr. King asserted that BCM breached its duty to act in good faith by breaching the express and

implied warranties and misrepresenting the condition of the vehicle.

{f36} Essentially, Mr. King contended below that representations by the salesperson that

the vehicle was excellent or perfect were actionable as the vehicle developed problems beginning

A-ll

12

30 days after purchase. The vehicle ultimately had repairs made to the braking system and air

conditioning system. Additionally, Mr. King argued that BCM failed to share with him inspection

records from Fred Martin Superstore concerning the vehicle and that conduct was also actionable.

Mr. King asserted that Fred Martin Superstore performed an inspection on the vehicle prior to

selling it to BCM and that BCM would have access to those inspection records from Fred Martin

Superstore because Fred Martin Superstore and BCM are related entities. A representative from

BCM averred that BCM acquired the vehicle from Fred Martin Motor Company, and it received

no service records or inspection reports from Fred Martin Motor Company regarding the vehicle.

{137} On appeal, Mr. King has made a very general argument that there remains a genuine

dispute of fact precluding summary judgment, while also asserting that he is entitled to summary

judgment.

The only claim that Mr. King expressly discusses is his claim related to

fraud/misrepresentation. Thus, Mr. King has not demonstrated on appeal that the trial court erred

in granting summary judgment to BCM as to his Ohio Consumer Sales Practices Act or contractrelated claim.

Fraud/Misrepresentation/Conceaiment/Negiigent Misrepresentation Claim

{138} Mr. King asserted in this claim that BCM represented the vehicle to be dependable,

knew the vehicle needed major repairs at the time of the sale, and failed to disclose the information

it received from Fred Martin Superstore regarding the condition of the vehicle.

{139} “Fraud consists of (a) a representation or, where there is a duty to disclose,

concealment of a'fact, (b) which is material to the transaction at hand, (c) made falsely, with

knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or

false that knowledge may be inferred, (d) with the intent of misleading another into relying upon

it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury

A-12

13

proximately caused by the reliance.” (Internal quotations and citation omitted.)

KeyBank, 108 Ohio St.3d 348, 2006-0hio-1189, f 47.

Groob v.

“The elements of negligent

misrepresentation are as follows: One who, in the course of his business, profession or

employment, or in any other transaction in which he has a pecuniary interest, supplies false

information for the guidance of others in their business transactions, is subject to liability for

pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to

exercise reasonable care or competence in obtaining or communicating the information.” (Internal

quotations and citations omitted.) Delman v. Cleveland Heights, 41 Ohio St.3d 1, 4 (1989).

{f40} BCM presented Mr. King’s deposition, accompanying exhibits, and an affidavit

along with exhibits in support of its motion for summary judgment. In his deposition, Mr. King

acknowledged that he did not expect the brakes to be new on a car that was over 10 years old with

over 130,000 miles on it. Mr. King also agreed that repairing and checking the brakes is a common

part of vehicle maintenance. He also indicated that, to his knowledge, there was nothing wrong

with the brakes at the time the car was sold to him by BCM and agreed that, at no point, did the

brakes ever fail to stop the vehicle. Mr. King testified that when he test drove the vehicle there

were no issues that he noticed and that “everything that [he] saw worked.” The car also stopped

and started and was in operating order at the time of purchase. Further, despite the problems with

the brakes and air conditioning that required repairs, Mr. King was able to drive the vehicle to the

deposition and acknowledged that it was capable of getting him there safely.

fl[41} There is no evidence in the record that BCM knew the vehicle needed any major

repairs at the time of the sale; in fact, Mr. King did not notice any issues with the vehicle until

approximately 30 days later and those issues involved the brakes, a system that Mr. King himself

acknowledged commonly required maintenance.

A-13

14

{f42} BCM also set forth evidence that it purchased the vehicle it sold to Mr. King from

Fred Martin Motor Company, and it did not receive any service records or inspection records from

Fred Martin Motor Company, Mr, King did not present any evidence which contradicts that fact;

instead, Mr. King has conjectured that BCM had the documents due to its affiliation with Fred

Martin Superstore. Moreover, Mr. King has not detailed how the service records relate to any of

the problems that he later experienced. Thus, Mr. King has not shown that he was damaged by

any failure to disclose records, assuming that BCM possessed any. Overall, Mr. King has not

shown on appeal that the trial court erred in granting summary judgment to BCM on his fraud

claim and in denying his motion for summary judgment.

{f43} Mr. King’s fifth assignment of error is overruled.

ASSIGNMENT OF ERROR I V

THE TRIAL COURT ERRED IN DENYING KING’S MOTION FOR A

PROTECTIVE ORDER.

{f44} Mr. King argues in his fourth assignment of error that the trial court erred in denying

his motion for a protective order. Given this Court’s resolution of Mr. King’s fifth assignment of

error, this assignment of error has been rendered moot. See App.R. 12(A)(1)(c). We therefore

decline to further address it.

A-14

15

III.

{f45} Mr. King’s first, second, third, and fifth assignments of error are overruled. His

fourth assignment of error is moot. The judgment of the Summit County Court of Common Pleas

is affirmed.

Judgment affirmed...

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR

FOR THE COURT

SUTTON, P. J.

STEVENSON, J.

CONCUR.

A-15

16

APPEARANCES:

DERRICK MARTIN KING, pro se, Appellant.

LAWRENCE R. BACH, Attorney at Law, for Appellee.

KRISTOPHER IMMEL, Attorney at Law, for Appellee.

A-16

APPENDIX B

King v. Budget Car Mart LLC.

Supreme Court of Ohio

Case No. 2023-1038

October 10, 2023 Order declining jurisdiction

Supreme Court of Ohio Clerk of Court - Filed October 10,2023 - Case No. 2023-1038

'©je Supreme (Emtrt of

\

Derrick Martin King

Case No. 2023-1038

ENTRY

v.

Budget Car Mart, LLC

Upon consideration of the jurisdictional memoranda filed in this case, the court

declines to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).

(Summit County Court of Appeals; No. 30293)

SKaron L. Kennedy

Chief Justice

\

j

The Official Case Announcement can be found at http://www.supremecourt.ohio.gov/ROD/docs/

B-l

APPENDIX C

King v. Budget Car Mart LLC

Ohio Court of Common Pleas (Summit County)

Case No. CV-2021-07-2074

April 20, 2022 Order granting Budget Car Mart LLC’s

motion for summary judgment

CV-2O21-O7-2074

ORB-SuJU

ROWLANDS, MARY MARGARET04/20/2022 15:15:10 PM

Page 1 of 6

TN THE COURT OF COMMON PLEAS

COUNTY OF SUMMIT

DERRICK MARTIN KING

)

CASE NO. CV-2021 -07-2074

)

Plaintiff

-vs-

)

JUDGE MARY MARGARET

•v

-rvrcc\-tt

)

KUWLAlNUi

)

)

BUDGET CAR MART LLC

)

Defendant

ORDER

)

ibis matter is before fhe Court on Plaintiff Derrick Martin King’s (Plaintiff) motion for

summary judgment, filed on March 9, 2022, and Defendant Budget Car Mart’s1 (Defendant)

motion for summary judgment, filed on January 31, 2022. Defendant’s opposition to Plaintiff’s

motion for summary judgment was filed on March 14, 2022. Plaintiffs opposition to

Defendant’s motion for summary judgment was filed on February 28, 2022.

On February 1, 2022, Plaintiff filed a motion strike his deposition because the court

reporter appeared via video conference, is not licensed as an online notary in Ohio, and because

Defendant failed to provide an errata sheet. On February 14, 2022, Defendant filed the errata

Defendant Budget Car Mart, LLC asserts the correct entity is CTTT Enterprises, DBA Budget Car Mart,

however, Plaintiff contends the correct entity is Budget Car Mart, LLC. For ease of discussion, the Court will refer

to the entity as each party claims.

1

C-l

Sandra Kurt, Summit County Clerk of Courts

CV-2021-07-2074

ROWLANDS, MARYMAROARBT04/20/2022 75:15:10 PM

ORD-SUJU

Page 2 of 6

sheet and opposed Plaintiffs motion to strike his deposition. On February 14, 2022, Plaintiff

opposed Defendant’s opposition to his motion to strike Plaintiff s deposition. On review, the

Court finds Plaintiffs motion to strike his deposition not well taken and is DENIED. Plaintiff

was aware the court reporter was appearing via video conference at the time of his deposition

and he did not object on the record; 7/30/2020 Administrative Actions, 2020-Ohio-3861(D)

alters the Ohio Civii Rules and authorizes remote administration of oaths due to the public

health threat caused by COVID-19, and; Plaintiff has not argued any prejudice as a result of the

court reporter appearing via video conference. Defendant’s motion to enlarge discovery to re­

take Plaintiff’s deposition is MOOT.

On March 2,2022, Defendant filed a motion to strike hearsay, to wit: complaints

regarding Defendant filed with the Ohio Attorney General and Akron Better Business Bureau.

Defendant asserts the hearsay materials are not Civ. R. 56(C) evidence. Plaintiff filed a

response on March 3, 2022 asserting Defendant knew about the documents and failed to object

when Plaintiff subpoenaed them. On review, Defendant’s motion to strike is well taken and the

complaints regarding Defendant submitted to the Ohio Attorney General and Akron Better

Business Bureau are stricken. The Court will not strike Plaintiff’s invoice from L.A. Motors but

limits its purpose to establish that Plaintiff had the work stated in the invoice performed.

Plaintiffs motion for a protective order, filed on March 3,2022, is not well taken and

DENIED.

On March 2, 2022, Defendant filed a reply in support of its motion for summary

judgment. On March 3,2022, Plaintiff moved to strike Defendant’s reply as it was filed without

leave of Court pursuant to the Court’s case management order. On review, Plaintiffs motion to

strike is well taken and Defendant’s reply brief is STRICKEN.

2

C-2

Sandra Kurt, Summit County Clerk of Courts

CV-2621-07-2074

ROWLANDS, MARY MARGARET04/20/2022 15:15:10 PM

ORD-SUJO

Page 3 of 6

On April 28, 2021, Plaintiff purchased a 2010 Chevy Malibu LT with 138,867 miles

from Defendant for $4,635,01 in “AS-IS” condition with no warranties. The salesman stated

the vehicle was in “excellent” or “perfect” condition. Plaintiff test drove the vehicle in the

dealership parking lot before purchasing the vehicle. At the time of purchase, Plaintiff stated

that everything worked. On September 15, 2021, Plaintiff took the car to L.A. Motors and

replaced the front and rear brake pads, rotors, hardware, front calipers, hoses, and front wheel

bearings (“Brake Job”) for $1,281.01 after driving the car for 1,312 miles. Plaintiff then had the

fan belt and air conditioner compressor replaced for $320.25. Defendant obtained the vehicle

from another dealer and had no knowledge of the vehicle’s repair history.

Plaintiff initiated this lawsuit against Defendant for violating the Uhio Consumer Sales

Practices Act (CSPA) for representing the car had performance characteristics it did not have;

the vehicle was of a particular standard, quality, grade, or model, and it was not; Defendant

sold the vehicle knowing Plaintiff would be unable to receive a substantial benefit from it;

knowingly made a misleading statement of opinion to Plaintiffs detriment, and; Defendant

sold a car to Plaintiff that was known to be in an unsafe and unreliable condition (Count One);

(Count Two) Fraud, Concealment, and Negligent Misrepresentation, and; (Count Three)

Breach of Express or Implied Contract/Breach of Covenants of Good Faith and Fair Dealing.

Pursuant to Civ. R. 56(C), summary judgment is appropriate when (1) no genuine issue

as to any material fact exists; (2) the party moving for summary judgment is entitled to

judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non­

moving party, reasonable minds can reach only one conclusion, and that conclusion is adverse

to the non-moving party. Temple v. Wean United Inc., 50 Ohio St.2d 317, 327 (1997). When

seeking summary judgment, the movant bears the initial burden of demonstrating the absence

of genuine issues of material fact concerning the essential elements of the non-moving party’s

3

C-3

Sandra Kurt, Summit County Clerk of Courts

CV-2021-07-2074

ROWLANDS, MARYMARGARET04/20/2022 15:15:10 PM

ORO-SUJU

Page 4 of 6

case. Dresher v. Burt, 75 Ohio St.3d 280, 292. Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ. R. 56(C), Id, at

292-293. Once the moving party satisfies that burden, the non-moving party has a reciprocal

burden” to “set forth specific facts showing that there is a genuine issue for trial.” Id. at 293,

quoting Civ. R. 56(E).

The contract for sale executed by Plaintiff states:

All warranties, if any, by manufacturer or supplier other than dealer are theirs, not

dealers and only such manufacturer or other supplier shall be liable for performance

under such warranties. Unless dealer furnishes purchased with a separate written

warranty or service contract made by dealer on its own behalf, dealer hereby disclaims

all warranties, express or implied, including any implied warranties of merchantability

or fitness for a particular purpose in connection with the vehicle and any related

products and services sold by dealer.

The “Buyer’s Guide” disclosed the vehicle was sold “AS IS - NO DEALER

WARRANTY. THE DEALER DOES NOT PROVIDE A WARRANTY FOR ANY REPAIRS

AFTER SALE.” Plaintiff also signed an "As-ls” Disclosure Form, which states, in summary,

that once the vehicle leaves the lot, any problems or repairs needed are at the customer’s

expense and the customer takes all risk as to the quality of the vehicle, there are no warranties,

and the customer should not rely on any verbal representations about the vehicle. Plaintiff is not

in possession of the old replaced brake pads, rotors, calipers, brake hardware, air conditioner

compressor, or fan belt. Defendant did not obtain any repair records or vehicle history from

Fred Martin Motor Company although Fred Martini Collision Center performed an inspection of

the vehicle before Defendant obtained it.

Plaintiff's opposition and motion for summary judgment recites a list of services

performed on the vehicle prior to Defendant’s acquisition of it. Many parts were replaced, and

an inspection was performed by Fred Martin Collision Center on April 13, 2021. The vehicle

4

C-4

Sandra Kurt, Summit County Clerk of Courts

i

CV-2021-07-2074

ROWLANDS, MARYMARGARET04/2072022 15:15:10 PM

ORD-SUJU

Page 5 of 6

was acquired by Defendant shortly thereafter. Even if Defendant was aware of the service

records and the inspection, Plaintiff failed to articulate how the services or the inspection

should have made Defendant aware there was a brake, fan belt, or air conditioning issue at the

time Plaintiff purchased the vehicle, or that the vehicle would have brake issues thirty days

later, and a fan belt and air conditioner problem one hundred and twenty days later.

When the evidence is viewed in the light most favorable to Plaintiff, reasonable minds

can only reach one conclusion, which is adverse to Plaintiff. There is no genuine issue of

material fact remaining to be litigated regarding whether Defendant violated the CSPA,

engaged in an unfair or deceptive act or practice, engaged in fraud, concealment or negligent

misrepresentation, and "breached an express or implied contract or the covenants of good faith

and fair dealing. Plaintiff is entitled to judgment as a matter of law. A review of the record

reveals Plaintiff was aware of the “as-is” condition of the vehicle when he purchased it. He test

drove the vehicle in a small circle around the parking lot before deciding to buy it. The brakes

and air conditioner were working. Statements by the salesperson that the eleven year old car

with 138,867 miles on it was recently acquired from Fred Martin was a true statement. The

salesperson’s statement that the car was in “excellent” or “perfect” condition are mere

expressions of opinion. The service records do not reveal any issues with the brakes or air

conditioner which Defendant could have concealed from Plaintiff. Plaintiff benefitted from his

purchase of the car as he continued driving the vehicle. It is not an unfair or deceptive act or

practice for a used car dealer to be unable to foresee brake issues that may arise with a vehicle

thirty days after it is purchased, or a fan belt and air conditioner problem one hundred and

twenty days later. The written documents constitute the final written agreement of the parties

and precludes Plaintiffs contract claims. Plaintiff has not articulated what contract term,

5

C-5

Sandra Kurt, Summit County Clerk of Courts

CV-2021-0T-2074

ROWLANDS, MARYMARGARET04/20/2022 15:15:10 PM

ORD-SUJU

Page 6 of 6

whether express or implied, Defendant is alleged to have breached, or is not performing in

good faith.

On review, Defendant’s motion for summary judgment on Plaintiffs first amended

complaint is well taken and GRANTED. Plaintiffs motion for summary judgment is DENIED.

IT IS SO ORDERED.

JUDGE MARY MARGARET ROWLANDS

CC: DERRICK MARTIN KING, PRO SE

ATTORNEY LAWRENCE R. BACH

ATTORNEY KRISTOPHER IMMEL

6

C-6

Sandra Kurt, Summit County Clerk of Courts

APPENDIX D

In re Tolling of Time Requirements Imposed by Rules

Promulgated by the Supreme Court & Use of Technology

2020-0hio-1166, 158 Ohio St.3d 1447, 141 N.E,3d 974

March 27, 2020 Ohio Supreme Court Administrative

Order

Wc\t ^npvtxm (£xmxt of ©ijttf

ADMINISTRATIVE ACTIONS

March 27,2020

[Cite as 03/27/2020 Administrative Actions, 2020-0hio-1166.]

la re Tolling of Time Requirements Imposed by Rales Promulgated by the

Supreme Court and Use of Technology

WHEREAS, on March 9, 2020, the Governor of Ohio issued Executive

Order 2020-0ID and declared a state of emergency in Ohio in response to COVID19;

WHEREAS, on March 11, 2020, the World Health Organization publicly

characterized COVID-19 as a global “pandemic” requiring “urgent and aggressive

action” to control the spread of COVID-19;

WHEREAS, on March 13, 2020, the President of the United States declared

a National Emergency;

WHEREAS, on March 27, 2020, the Governor of Ohio signed into law

Am.Sub.H.B. No. 197, which immediately tolled, retroactive to March 9, 2020, all

statutes of limitation, time limitations, and deadlines in the Ohio Revised Code and

the Ohio Administrative Code until the expiration of Executive Order 2020-0ID or

July 30, 2020, whichever is sooner;

WHEREAS, social distancing must be observed during the emergency

period in all court proceedings and in each court in order to mitigate the spread of

COVID-19;

WHEREAS, it is necessary for the Court to 'establish a temporary measure

promoting uniformity and continuity amongst the courts of Ohio and ensuring the

D-l

continued and effective operation of the judicial system during the emergency

period;

NOW THEREFORE, the Court hereby orders the following:

(A) This order shall apply retroactively to the date of the emergency

declared by Executive Order 2020-0 ID and shall expire on the date the period of

emergency ends or July 30,2020, whichever is sooner.

(B)

As used in this order:

(1)

“Rules of the Court” means the following rules promulgated by the

(a)

The Ohio Code of Judicial Conduct;

(b)

The Ohio Rules of Appellate Procedure;

(c)

The Ohio Rules of Civil Procedure;

(d)

The Ohio Rules of Criminal Procedure;

(e)

The Ohio Rules of Evidence;

(f>

The Ohio Rules of Juvenile Procedure;

(g)

The Ohio Rules of Professional Conduct;

(h)

The Ohio Traffic Rules;

(0

The Rules for Appointment of Counsel in Capital Cases;

G)

The Rules for the Government of the Bar of Ohio;

(k)

The Rules for the Government of the Judiciary of Ohio;

(1)

The Rules of Practice of the Supreme Court of Ohio;

(m)

The Rules of Superintendence for the Courts of Ohio;

Court:

2

D-2

03-27-2020

(n)

The Supreme Court Rules for the Reporting of Opinions;

(o)

Mayor’s Courts Forms, Instructions, and Education & Procedure

Rules.

(2) “Time requirements” means the time for filing all pleadings, appeals,

and all other filings; time limitations; deadlines; and other directives related to

time, including non-constitutional jurisdictional deadlines.

(C) Any requirement in a rule of the Court that a party appear in person or

requiring in-person service may be waived by the Court, local court, hearing panel,

board, or commission, as applicable. Appearance or service by use of technology

may be allowed if it sufficiently guarantees the integrity of the proceedings and

protects the parties’ interests and rights.

(D) The time requirements imposed by the rules of the Court and set to

expire during the term of this order shall be tolled.

(E) Upon the expiration of this order, all time requirements tolled by this

order shall resume.

(F) Nothing in this order precludes filings during the duration of the order

if the Court, local court, hearing panel, board, commission, or clerk is able to

receive filings due to local accommodations and the matter is related to a situation

that requires immediate attention.

(G) Notwithstanding the tolling of time requirements imposed by this

order, the Court, local court, hearing panel, board, or commission, as applicable,

may still require filing in accordance with existing rules and issue orders setting a

specific schedule in a case or requiring parties to file documents by a specific due

date if pertaining to a situation that requires immediate -attention- A specific order

in a case issued on or after March 9, 2020, shall supersede the tolling provisions of

this order, unless , otherwise noted in that specific order. All courts shall in every

case strive to be in uniform conformance with the language and intention of this

order, as well as complying with all directives from the Director of the Ohio

Department of Health, until the specified expiration date.

3

D-3

03-27-2020

APPENDIX E

In re Remote Administration of Oaths and Affirmations

2020-0hio-3195, 159 Ohio St.3d 1402, 146 N.E.Sd 578

June 3, 2020 Ohio Supreme Court Administrative

Order

Supreme (Emtrt ai (©ipo

ADMINISTRATIVE ACTIONS

June 3,2020

[Cite as 06/03/2020 Administrative Actions, 2020-0hio-3155.[

In re Remote Administration of Oaths and Affirmations

WHEREAS, on March 9,2020, the Governor of Ohio issued Executive Order

2020-0ID and declared a state of emergency in Ohio in response to COVID-19;

WHEREAS, on March 11, 2020, the World Health Organization publicly

characterized COVID-19 as a global “pandemic” requiring “urgent and aggressive

action” to control the spread of COVID-19;

WHEREAS, on March 13, 2020, the President of the United States declared

a National Emergency;

WHEREAS,, social distancing must be observed during the emergency period

in all court proceedings and in each court in order to mitigate the spread of COVID19;

WHEREAS, it is imperative that courts remain operational during the

emergency period and are strongly encouraged to use technology to conduct trials

and proceedings remotely;

WHEREAS, Civ.R. 30(B)(6) allows a deposition to be taken by telephone or

other remote means upon stipulation of the parties or order of the court;

WHEREAS, the Court’s May 15, 2020 Nunc Pro Tunc Order provides that

any requirement in a rule of the Court that a party appear in person may be waived

and that the party may appear remotely by use of technology;

E-l

WHEREAS, the Court has released over $6,000,000 in emergency grant

funding to help local courts purchase technology equipment to deal with the impact

of the COVID-19 emergency and the necessary measures to mitigate the spread of

virus;

NOW THEREFORE, the Court hereby orders the following:

(A) This order shall apply retroactively to the date of the emergency

declared by Executive Order 2020-0ID and shall expire on the date the period of

emergency ends or July 30, 2020, whichever is sooner.

(B)

As used in this order:

(1)

“Rules of the Court” means' the following rules promulgated by the

(a)

The Ohio Code of Judicial Conduct;

(b)

The Ohio Rules of Appellate Procedure;

(c)

The Ohio Rules of Civil Procedure;

(d)

The Ohio Rules of Criminal Procedure;

(e)

The Ohio Rules of Evidence;

(f)

The Ohio Rules of Juvenile Procedure;

(g)

The Ohio Rules of Professional Conduct;

(h)

The Ohio Traffic Rules;

G)

The Rules for Appointment of Counsel in Capital Cases;

G)

The Rules for the Government of the Bar of Ohio;

(k)

The Rules for the Government of the Judiciary of Ohio;

(1)

The Rules of Practice of the Supreme Court of Ohio;

Court:

2

E-2

06-03-2020

(m)

The Rules of Superintendence for the Courts of Ohio;

(n)

The Supreme Court Rules for the Reporting of Opinions;

(o)

Mayor’s Courts Forms, Instructions, and Education & Procedure Rules.

(C) Any oath or an affirmation required by a rule of the Court may be

administered remotely by use of audio- or video-communication technology,

provided the technology shall allow the person administering the oath or affirmation

to positively identify the person taking the oath or making the affirmation.

/

\

3

E-3

06-03-2020

APPENDIX F

In re Use of Technology and Remote Administration of

Oaths and Affirmations

2020-0hio-3861, 159 Ohio St.3d 1461, 150 N.E.3d 107

July 31, 2020 Ohio Supreme Court Administrative

Order

‘(Eije Jiupreme Court of (@l|to

ADMINISTRATIVE ACTIONS

July 31,2020

(Cite as 07/31/2020 Administrative Actions, 2020-0hio-3861.(

In re Use of Technology and Remote Administration of Oaths and Affirmations

WHEREAS, on March 9, 2020, the Governor of Ohio issued Executive Order

2020-0ID and declared a state of emergency in Ohio in response to COVID-19;

WHEREAS, on March 11, 2020, the World Health Organization publicly

characterized COVID-19 as a global “pandemic” requiring “urgent and aggressive

action” to control the spread of COVID-19;

WHEREAS, on March 13, 2020, the President of the United States declared

a National Emergency;

WHEREAS, social distancing must be observed during the emergency period

in all court proceedings and in each court in order to mitigate the spread of COVID19;

WHEREAS, it is imperative that courts remain operational during the

emergency period and are strongly encouraged to use technology to conduct trials

and proceedings remotely;

WHEREAS, Civ.R. 30(B)(6) allows a deposition to be taken by telephone or

other remote means upon stipulation of the parties or order of the court;

WHEREAS, the Court’s May 15, 2020 Nunc Pro Tunc Order providing that

any requirement in a rule of the Court that a party appear in person may be waived

and that the party may appear remotely by use of technology expired on July 30,

2020;

F-l

WHEREAS, the Court’s June 3, 2020 Order providing that an oath or an

affirmation required by a rule of the Court may be administered remotely by use of

audio or video communication technology expired on July 30, 2020;

WHEREAS, the Court has released over $6,000,000 in emergency-grant

funding to help local courts purchase technology equipment to deal with the impact

of the COVID-19 emergency and the necessary measures to mitigate the spread of

virus;

NOW THEREFORE, the Court hereby orders the following:

(A) This order shall apply retroactively to the date of the emergency

declared by Executive Order 2020-01D and shall remain in effect until further order

of the Court.

(B)

As used in this order:

(1)

“Rules of the Court” means the following rules promulgated by the

(a)

The Ohio Code of Judicial Conduct;

(b)

The Ohio Rules of Appellate Procedure;

(c)

The Ohio Rules of Civil Procedure;

Court:

(d) ' The Ohio Rules of Criminal Procedure;

(e)

The Ohio Rules of Evidence;

(f)

The Ohio Rules of Juvenile Procedure;

(g)

The Ohio Rules of Professional Conduct;

(h)

The Ohio Traffic Rules;

(i)

The Rules for Appointment of Counsel in Capital Cases;

G)

The Rules for the Government of the Bar of Ohio;

2

F-2

07-31-2020

(k)

The Rules for the Government of the Judiciary of Ohio;

(1)

The Rules of Practice of the Supreme Court of Ohio;

(m)

The Rules of Superintendence for the Courts of Ohio;

(n)

The Supreme Court Rules for the Reporting of Opinions;

(o)

Mayor’s Courts Forms, Instructions, and Education & Procedure Rules.

(C)(1) Any requirement in a rule of the Court that a party appear in person or

requiring in-person service may be waived by the Court, local court, hearing panel,

board, or commission, as applicable. Appearance, service, or oral argument by use

of technology shall be allowed if it sufficiently guarantees the integrity of the

proceedings and protects the parties’ interests and rights.

(2) Proceedings for which the personal appearance of a party may be

waived include, but are not limited to, the following:

(a)

Arraignments pursuant to Crim.R. 10;

(b)

Pleas pursuant to Crim.R. 11;

(c)

The issuance of a warrant pursuant to Crim.R 41;

(d) Oral arguments pursuant to App.R. 21, provided nothing in this order

shall deny a party oral argument when properly requested;

(e)

Arraignments pursuant to Traf.R. 8.

(D) Any oath or an affirmation required by a rule of the Court may be

administered remotely by use of audio or video communication technology,

provided the technology shall allow the person administering the oath or affirmation

to positively identify the person taking the oath or making the affirmation.

3

F-3

07-31-2020