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Curl v. Volkswagen of America12/2/2005
f the parties, count one of the complaint was dismissed, and pursuant to Civ.R. 54(B), the trial court found no just reason to delay an appeal of the April 30, 2004 judgment entry. It is from that judgment entry that Volkswagen filed a timely notice of appeal and raises the following assignments of error:
{ } "[1.] The [trial] court erred when it granted summary judgment to [appellee] on his Lemon Law claim and failed to dismiss that claim in summary judgment as ppellant had requested.
{ } "[2.] The trial court erred when it did not grant [appellant's] request for summary judgment on [appellee's] claim for breach of implied warranty.
{ } "[3.] The trial court erred when it granted [appellee's] request for summary judgment on his implied warranty claim."
{ } This court will first address appellant's implied warranty argument. In this assignment of error, Volkswagen argues that appellee cannot sustain a claim for breach of implied warranty since there is no privity between the parties.
{ } An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105; Kruppa v. All Souls Cemetery of the Diocese of Youngstown (Feb. 22, 2002), 11th Dist. No 2001-T-0029, 2002 Ohio App. LEXIS 773, at 6.
{ } In order for a summary judgment to be granted, the moving party must prove:
{ } " * (1) 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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385.
{ } The Supreme Court stated in Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, that:
{ } " * the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. The 'portions of the record' to which we refer are those evidentiary materials listed in Civ.R. 56(C), such as the pleadings, depositions, answers to interrogatories, etc., that have been filed in the case. *" (Emphasis sic.)
{ } The Magnuson-Moss Warranty -- Federal Trade Commission Improvement Act of 1975 ("MMWA"), Section 2301 et seq., Title 15, U.S.Code, with its attendant regulations, Sections 700.1 et seq., Title 16, C.F.R., govern consumer product warranties, both written and implied. It was enacted by Congress to address the widespread misuse by merchants of express warranties and disclaimers.
{ } The MMWA applies only to a "consumer product," defined as "any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes[.]" Section 2301(1), Title 15, U.S.Code. An automobile comes within this definition. Section 700.1(a), Title 16, C.F.R. "Consumer" means "a buyer (other than for purposes of resale) of any consumer product, any person to whom such product is transferred during the duration of an implied or written warranty * applicable to the product, and any other person who is entitled by the terms of such warranty * or under applicable State law to enforce against the warrantor * the obligations of the warranty *." Section 2301(3), Title 15, U.S.Code. Appellee would be a consumer under the MMWA.
{ } The provisions of the MMWA are
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