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Zemcik v. Lapine Truck Sales & Equipment Co.12/11/1997
Judgment Judgment reversed; judgment entered for appellant.
Defendant-appellant LaPine Truck Sales and Equipment Company (LaPine) appeals from a summary judgment, jury verdict and treble damage judgment of $30,000 plus attorney fees and costs in favor of plaintiff-appellee Stephen Zemcik, d.b.a. Owosso Refuse (Zemcik) arising out of Zemcik's claim that defendant sold him a 1984 trash packer truck with a false odometer reading in violation of R.C. 4549.45. We find that the trial court erred in not entering summary judgment in favor of defendant on the grounds that the two year statute of limitations (R.C. 4549.49(B)) barred plaintiff's action. We reverse and enter judgment for defendant LaPine.
This case arose out of a negotiation for Zemcik's purchase of a used 1984 Ford LTS 8000 packer truck from LaPine in December 1991. Zemcik, who ran a trash hauling business in Owosso, Michigan, saw LaPine's advertisement in a trade journal. Following telephone and other communications, the parties struck a deal for $21,100 which included LaPine's delivery of the truck to Zemcik in Michigan. The summary judgment proceeding reflected the following course of events.
On or about January 3, 1992, LaPine forwarded to Zemcik a Vehicle Order No. 8634 and, shortly thereafter, received the signed order back from Zemcik. Zemcik paid the purchase price and the packer truck was delivered to Zemcik on January 9, 1992 in Michigan.
LaPine's witness, Sandra Richards, stated that in January 1992, in connection with the sale of the packer truck, she had forwarded to Zemcik a number of documents referred to as power of attorney, exemption certificate and affidavit regarding sale to an out-of-state resident, power of attorney to execute application for title, and notification of driver's license information and a federal identification number. These title documents, which would have allowed LaPine to obtain the new Certificate of Title in Zemcik's name, were not executed or returned at that time by Zemcik because of the problems he discovered with the truck on delivery. Ultimately, in October 1992, Zemcik executed and returned a second set of requested documents to permit transfer of the Certificate of Title. (Richards Aff. Sept. 27, 1995).
In January 1992, after inspecting the truck, Zemcik found a number of problems and consulted an attorney who, on January 28, 1992, corresponded with John Spera, LaPine's Vice President, asserting, inter alia, an odometer misrepresentation. In pertinent part, Zemcik's attorney, Kathy Fitzgerald, stated in her January 28, 1992 letter to John Spera:
Further, Mr. Zemcik was not provided an odometer statement at the time of transfer of the vehicle from LaPine, contrary to federal law, 15 U.S.C.S. 1981, et seq. It appears that LaPine's oral representation concerning the mileage of the vehicle (60,000 miles) was false, and that the vehicle may actually have in excess of 161,000 miles. As you are no doubt aware, an entity in violation of Federal Odometer Requirements is liable for treble damages, together with actual attorney fees incurred by the purchase. In as much as Mr. Zemcik has paid $21,000 to LaPine for a vehicle which has no value to him, Mr. Zemcik's base damages are at least $21,000. Accordingly, were this matter to be subject of litigation, a minimum of $63,000, together with actual attorney fees, would be sought.
Subsequent correspondence between counsel for the parties proved unsuccessful in resolving the matter. Plaintiff's attorney wrote on April 8, 1992 that the basis on which Mr. Zemcik questions the accuracy of the vehicle's odometer includes not only the condition of the vehicle itself but the fact t
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