Marreez v. Jim Collins Auto Body, Inc. , 2021 Ohio 4075 ( 2021 )


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  • [Cite as Marreez v. Jim Collins Auto Body, Inc., 
    2021-Ohio-4075
    .]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    YEHIA MARREEZ,                                       :      APPEAL NO. C-210192
    TRIAL NO. 20CV-18967
    Plaintiff-Appellant,                         :
    :          O P I N I O N.
    VS.
    :
    JIM COLLINS AUTO BODY, INC.,                         :
    Defendant-Appellee.                             :
    Civil Appeal From: Hamilton County Municipal Court
    Judgment Appealed From Is: Reversed and Cause Remanded
    Date of Judgment Entry on Appeal: November 17, 2021
    Yehia M. Marreez, pro se,
    Becker & Cade, and Justin S. Becker, for Defendant-Appellee.
    OHIO FIRST DISTRICT COURT OF APPEALS
    BERGERON, Judge.
    {¶1}   A minor fender-bender careened into a major collision after plaintiff-
    appellant Yehia Marreez dropped his car off for repair with defendant-appellee Jim
    Collins Auto Body (“Collins Auto”). At the insurance company’s request, Collins
    Auto performed an initial inspection of the vehicle, an exercise that cost under $200.
    The insurance company later backtracked, concluding that Mr. Marreez’s policy
    would not cover the damage, leaving Collins Auto with unpaid labor charges for the
    initial inspection.    The trial court decided Mr. Marreez should have paid the
    inspection bill and granted Collins Auto a garageman’s lien on the vehicle. But
    Collins Auto failed to inform Mr. Marreez of his right to an estimate as required by
    the Ohio Consumer Sales Practice Act (“OCSPA”), a violation which negated its right
    to a possessory lien over the vehicle.     Accordingly, we reverse the trial court’s
    judgment and remand for entry of judgment in favor of Mr. Marreez.
    I.
    {¶2}   After his car sustained front end damage during an automobile
    accident, Mr. Marreez submitted pictures and information to his insurance company,
    Allstate. Allstate provided Mr. Marreez with a preliminary estimate of $470 and
    instructed him to take the vehicle and the estimate to a body shop for repair. Mr.
    Marreez chose Collins Auto based on a previous positive experience with the
    mechanic there. During the drop-off encounter, Collins Auto offered to interface
    directly with Allstate on Mr. Marreez’s behalf. At Allstate’s behest, Collins Auto “tore
    down” the vehicle’s front bumper to check for hidden damage and provided a
    supplemental estimate of $3,862.75 to Allstate. Perhaps suffering from sticker shock
    from this nearly ten-fold increase in the estimate, Allstate subsequently determined
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    OHIO FIRST DISTRICT COURT OF APPEALS
    that the type of policy held by Mr. Marreez did not actually cover the damage at
    issue.   It is undisputed that Collins Auto provided no up-front estimate to Mr.
    Marreez.
    {¶3}   The owner, Jim Collins, testified that this was an unusual situation in
    that Allstate mistakenly provided an initial estimate, leading both parties to believe
    the insurance company would foot the bill—including any fees for inspecting the
    vehicle. When the insurance company balked, Mr. Collins informed Mr. Marreez
    that he would need to cover the $160 inspection bill upon retrieval of the car. Mr.
    Marreez refused, believing he should not pay for Allstate’s blunder, which
    precipitated jousting with Collins Auto over who bore responsibility for the charge.
    With no resolution in sight, Collins Auto claimed a right to retain the vehicle for the
    unpaid charges by virtue of a common law garageman’s lien. After a trial before a
    magistrate, the trial court decided Collins Auto validly obtained a lien on the unpaid
    charges and denied Mr. Marreez’s complaint for replevin. Mr. Marreez now appeals
    pro se raising six assignments of error. We overrule five of the six assignments of
    error for failure to advance a legal argument, but sustain his second assignment of
    error as it pertains to violations of the OCSPA.
    II.
    {¶4}   Pro se appellants such as Mr. Marreez are “presumed to have
    knowledge of the law and legal procedures” and will be “held to the same standard as
    litigants who are represented by counsel.” State ex rel. Fuller v. Mengel, 
    100 Ohio St.3d 352
    , 
    2003-Ohio-6448
    , 
    800 N.E.2d 25
    , ¶ 10. In the interest of justice, we will
    consider all cognizable contentions presented but will not create an argument if a pro
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    OHIO FIRST DISTRICT COURT OF APPEALS
    se litigant fails to develop one. Fontain v. Sandhu, 1st Dist. Hamilton No. C-200011,
    
    2021-Ohio-2750
    , ¶ 15. Under the Ohio Rules of Appellate Procedure, Mr. Marreez
    must support each assignment of error with citations to the authorities, statutes, and
    parts of the record relied upon. App.R. 16(A)(7) (“The appellant shall include in its
    brief * * * [a]n argument containing the contentions of the appellant with respect to
    each assignment of error presented for review and the reasons in support of the
    contentions, with citations to the authorities, statutes, and parts of the record on
    which appellant relies.”).
    {¶5}   Mr. Marreez’s first, third, and fourth assignments of error fail to steer
    us to the parts of the record in dispute or provide any citations to applicable Ohio
    authority. His fifth assignment of error insists that the trial court erred in granting a
    motion for summary judgment, but no motions for summary judgment were
    tendered or granted in this case. His sixth assignment of error appears to advance a
    claim for damages for transportation costs incurred while he was without his vehicle,
    but he never presented this cause of action to the trial court, which precludes us from
    considering it on appeal. Because Mr. Marreez failed to develop an argument under
    the foregoing assignments of error, we are inclined to disregard them.           App.R.
    12(A)(2) (“The court may disregard an assignment of error presented for review if the
    party raising it fails to identify in the record the error on which the assignment of
    error is based or fails to argue the assignment separately in the brief, as required
    under App.R. 16(A).”). To the extent that an argument is presented, we overrule all
    of these assignments of error.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶6}   In his second assignment of error, Mr. Marreez challenges the
    sufficiency of the evidence that led to the imposition of a common law lien on his
    vehicle. According to Mr. Marreez, Collins Auto violated the OCSPA when it failed to
    provide a written estimate of the repair cost beforehand. In his view, because this
    type of violation constitutes a deceptive consumer practice under Ohio law, it
    prevents Collins Auto from asserting a possessory lien over the vehicle. Collins Auto
    disputes this proposition, insisting that Mr. Marreez did not allege violations of the
    OCSPA in his complaint or before the trial court, and it characterizes those matters
    as waived. But Mr. Marreez’s complaint for replevin specifically alleged a “Violation
    of Consumer Sales Practice Act” and also indicated “I do not have any oral or written
    contract with him to charge me for anything.” Indeed, the entire thrust of his
    argument during the trial was that he never authorized Collins Auto to perform any
    repair or service and that he received no notice that he would be charged anything, as
    required by the OCSPA. Having found the issue properly preserved for appeal, we
    turn now to the substance of the matter at hand.
    {¶7}   As a threshold matter, however, Mr. Marreez failed to lodge objections
    to the magistrate’s decision, waiving all but plain error.     Civ.R. 53(D)(3)(b)(iv)
    (“Except for a claim of plain error, a party shall not assign as error on appeal the
    court’s adoption of any factual finding or legal conclusion * * * unless the party has
    objected to that finding or conclusion.”). Plain error includes “ ‘error[s] of law or
    other defect[s] evident on the face of the magistrate’s decision’ ” that would prevent
    adopting the magistrate’s decision, regardless of whether Mr. Marreez objected to
    the finding or conclusion. See Mott v. Morgan, 5th Dist. Delaware No. 21 CAG 02
    0011, 
    2021-Ohio-3026
    , ¶ 20, quoting Civ.R. 53 (D)(4)(c). We acknowledge that
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    OHIO FIRST DISTRICT COURT OF APPEALS
    appellate courts must limit finding plain error in civil cases to “those extremely rare
    cases where exceptional circumstances require its application to prevent a manifest
    miscarriage of justice.” Goldfuss v. Davidson, 
    79 Ohio St.3d 116
    , 121, 
    679 N.E.2d 1099
     (1997). This case presents such a situation.
    {¶8}    The OCSPA prohibits unfair or deceptive acts by suppliers in consumer
    transactions. R.C. 1345.02(A) (“No supplier shall commit an unfair or deceptive act
    or practice in connection with a consumer transaction. Such an unfair or deceptive
    act or practice by a supplier violates this section whether it occurs before, during, or
    after the transaction.”).    The Ohio Attorney General enjoys broad power to
    promulgate substantive rules delineating acts or practices that violate the OCSPA.
    R.C. 1345.05(B)(2).      One such rule issued by the Attorney General, Ohio
    Administrative Code 109:4-3-13, describes certain conduct that constitutes a
    deceptive act or practice when the supplier and consumer deal with each other face
    to face at the supplier’s business. In such a transaction, and where the anticipated
    cost exceeds $50, it is a deceptive act for the supplier to service a motor vehicle
    without providing a form notifying the consumer of his right to an estimate. Ohio
    Adm.Code 109:4-3-13(A)(1) (A deceptive act occurs when, “prior to the
    commencement of the repair or service,” a supplier fails to provide the consumer
    with a form which indicates “the anticipated cost of the repair or service.”). The form
    must “clearly and conspicuously” disclose that the consumer has the right to either a
    written estimate, an oral estimate, or no estimate. 
    Id.
     The rule emphasizes that “any
    failure to comply with the regulations is deemed a ‘deceptive act or practice.’ ”
    Ottney v. Al Sobb’s Auto & Truck Frame Serv., Inc., 
    2018-Ohio-4054
    , 
    112 N.E.3d 927
    , ¶ 22 (6th Dist.).
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶9}   In Ohio, a mechanic who receives a motor vehicle from a consumer for
    the purpose of repairing it has a common law lien on the vehicle for the reasonable
    value of the labor and materials. See 66 Ohio Jurisprudence 3d, Liens, Section 8
    (2021); see also Justice v. Bussard, 
    65 Ohio Law Abs. 461
    , 
    114 N.E.2d 305
    , 308 (M.C.
    1953) (“A common-law lien is the right of a person to retain that which is in his
    possession, but belonging to another, until certain demands—usually payment for
    services and repairs—are paid by the owner.” * * * “It has been consistently
    recognized in Ohio even though the legislature has never created such a lien.”).
    While the General Assembly codified most artisan liens under R.C. 1333.41, that
    statute specifically excludes motor vehicles, which remain governed by the common
    law. R.C. 1333.41(E); Leesburg Fed. Sav. Bank v. McMurray, 12th Dist. Franklin
    No. CA2012-02-002, 
    2012-Ohio-5435
    , ¶ 10 (“[A]rtisan’s liens over motor vehicles
    remain governed by the common law.”). For this type of common law garageman’s
    lien to arise, the service the mechanic performs “must be to maintain or enhance the
    value of the personal property.” Shearer v. Bill Garlic Motors, Inc., 
    59 Ohio App.2d 320
    , 322, 
    394 N.E.2d 1014
     (6th Dist.1977). Thus, a mechanic in Ohio “whose labor
    and skill impart additional value and improvement to an automobile has a common
    law lien upon the automobile until his reasonable charges are paid * * * [and] may
    lawfully retain possession of the automobile until those charges are paid.” Murphy
    v. Koepke Motors, 8th Dist. Cuyahoga No. 47257, 
    1984 WL 5013
    , *5 (Mar. 29, 1984).
    {¶10} But when a mechanic violates the OCSPA by committing a deceptive or
    unfair act, Ohio courts recognize that “such violations can act to negate the
    mechanic’s right to retain a possessory lien over the vehicle.” State v. Pawloski, 
    188 Ohio App.3d 267
    , 
    2010-Ohio-3504
    , 
    935 N.E.2d 111
    , ¶ 19 (8th Dist.), citing Mannix v.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    DCB Serv., Inc., 2d Dist. Montgomery No. 19910, 
    2004-Ohio-6672
    , ¶ 29; see State v.
    Ames, 
    182 Ohio App.3d 736
    , 
    2009-Ohio-3509
    , 
    914 N.E.2d 1118
    , ¶ 19 (2d Dist.)
    (finding a common-law garageman’s possessory lien invalid where mechanic failed to
    provide an estimate or form prior to making repairs). As applied here, Collins Auto
    committed a deceptive act when it failed to provide Mr. Marreez with the required
    OCSPA form during their initial contact informing him of the right to an estimate for
    any service or repair. As a result, Collins Auto cannot obtain a lien on the vehicle.
    {¶11} The fact that Collins Auto incorrectly assumed Allstate would pay the
    inspection bill is no defense.    Mr. Collins testified he does not consider initial
    estimates falling below a customer’s deductible to be insurance claims because the
    customer pays the entire bill before insurance kicks in anything. At the time of drop-
    off, both parties believed Mr. Marreez’s deductible to be $500. The original Allstate
    estimate was $470, below Mr. Marreez’s deductible, so Mr. Collins had no initial
    reason to assume Allstate would pay—unless, of course, he anticipated that his
    estimate would exceed Allstate’s. Mr. Collins took a calculated risk and lost when
    Allstate realized its mistake regarding Mr. Marreez’s policy. But that gamble does
    not nullify Collins Auto’s obligation to provide Mr. Marreez with an initial estimate
    before working on the car. And allowing Collins Auto to service Mr. Marreez’s car
    and then decide after the fact what price, if any, to charge him is antithetical to the
    purpose and structure of the OCSPA. Because that type of conduct constitutes a
    deceptive practice, it prevents Collins Auto from obtaining a superior possessory
    right in the vehicle over Mr. Marreez. We accordingly sustain Mr. Marreez’s second
    assignment of error.
    *      *       *
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶12} In light of the foregoing analysis, we reverse the trial court’s judgment
    and remand for entry of judgment in favor of Mr. Marreez on his OCSPA claim.
    Judgment reversed and cause remanded.
    MYERS, P. J., and CROUSE, J., concur.
    Please note:
    The court has recorded its entry on the date of the release of this opinion
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