Hirsi v. Davis Creek Auto Sales , 2016 Ohio 7569 ( 2016 )

[Cite as Hirsi v. Davis Creek Auto Sales, 2016-Ohio-7569.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Asha Hirsi, et al., :
Plaintiffs-Appellees, :
No. 15AP-415
v. : (C.P.C. No. 13CV-7271)
Davis Creek Auto Sales, et al., : (REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on November 1, 2016
On brief: Mark J. Miller, for appellees.
On brief: Marcell Rose Anthony, for appellants. Argued:
Marcell Rose Anthony.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendants-appellants, Davis Creek Auto Sales (also identified in the record
as Davis Creek Auto Group, and referred to herein as "Davis Creek") and its owner,
Mehrdad Pourfarhadi, appeal a judgment of the Franklin County Court of Common Pleas,
filed on April 15, 2015, following a jury verdict finding Davis Creek liable for money
damages to plaintiffs-appellees, Asha Hirsi and Mohammed Salem, for their breach of
contract claims. The jury further found Pourfarhadi not liable for breach of contract, and
Hirsi and Salem not liable for Davis Creek and Pourfarhadi's counterclaims. Davis Creek
and Pourfarhadi seek to have the jury verdict in favor of Hirsi and Salem reversed and
judgment entered in favor of Davis Creek. Because we find that the trial court improperly
excluded certain evidence proffered by Davis Creek and Pourfarhadi, we remand for a
new trial.
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I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The record indicates that the parties had known each other for many years
prior to the events that gave rise to this case, which began as an action for money damages
by Hirsi and Salem against Davis Creek and Pourfarhadi for breach of an oral contract
("the contract") for the sale of Hirsi's 2005 Mercedes Benz ("the car"). Pourfarhadi is a
car dealer from West Virginia, where his business, Davis Creek, is located. Davis Creek
and Pourfarhadi participate in auto auctions conducted by Manheim Ohio in Grove City,
Ohio. In March 2011, Salem was engaged in the wholesale car sale business in the
Columbus area and had represented Davis Creek and Pourfarhadi at auto auctions in
Ohio, including Manheim Ohio. The record indicates that, in exchange for Salem's
services on behalf of Davis Creek and himself, Pourfarhadi allowed Salem to sell vehicles
in his own right at Manheim Ohio under Davis Creek's permit. Hirsi was Salem's friend
and, through him, Hirsi had made contact with Pourfarhadi.
{¶ 3} The record before this Court also contains apparent inconsistencies and
contradictions regarding when, where, and from whom Hirsi purchased the car, how long
she had it before it was sold at auction under Davis Creek's permit, whether the parties
entered into an oral contract regarding the sale of the car, who delivered the car to the
auction for sale, whether Pourfarhadi paid the sale proceeds to Salem, and whether Salem
and Hirsi's conduct damaged the business interests of Davis Creek and Pourfarhadi.
{¶ 4} Hirsi and Salem allege that on March 1, 2011, Hirsi had purchased the car
from Alex Auto Sales in Columbus, Ohio for $15,5001 with Salem's assistance. Salem
accompanied her to Alex Auto Sales, where he paid for the car using money she provided.
They allege that an employee of Alex Auto Sales gave Salem a bill of sale and a signed
certificate of title, which Salem handed over to Hirsi. Hirsi placed the title in the car's
glove compartment and "forgot about it," never signing it or registering the car in her
name with the Ohio Bureau of Motor Vehicles ("BMV"). (Mar. 9, 2015 Tr. Vol. I at 72.)
Hirsi stated she had not paid, nor been charged for, sales tax or transfer fees when she
bought the car because Alex Auto Sales just gave her the title without executing a transfer
1Hirsi testified that she had borrowed $10,000 of the purchase price from Shimaa Qaroot, whom she refers
to as her cousin, even though they are not related by blood. Qaroot was not called to testify at trial.
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of title of the vehicle specifically to her. Hirsi stated she did not sign the title because she
would have had to pay taxes on the purchase.
{¶ 5} Hirsi and Salem testified further that Hirsi began having problems with the
car almost immediately and wanted to get rid of it. Salem contacted Pourfarhadi, who
met with them at Salem's house on March 4, 2011. They allege that Pourfarhadi agreed to
take Hirsi's car to auction, sell it for her under Davis Creek's permit, pay the auction fees
out of the sale proceeds and give the remaining amount to Hirsi and Salem. They further
allege that Pourfarhadi left Salem's house with the car on March 4, 2011 and sold it at
auction later that month, but did not give Hirsi the sale proceeds. Hirsi stated she
received a letter from Pourfarhadi that stated he was not "going to pay [her] back." (Tr.
Vol. I at 60.)
{¶ 6} Hirsi filed a report with the Grove City Division of Police ("GCPD") in
August 2011, indicating that Pourfarhadi had stolen her car on March 30, 2011. GCPD
investigated the report and on October 20, 2011, advised Hirsi that the case was a civil
matter, in part because Hirsi was unable to show that the car had been registered in her
name. GCPD cleared Hirsi's theft report without charging anyone.
{¶ 7} On April 11, 2013, Hirsi and Salem filed suit against Davis Creek and
Pourfarhadi in the Franklin County Municipal Court for breach of contract, seeking
damages in the amount of $14,700, which they claim represents the proceeds of the sale
after the auction fees were paid.
{¶ 8} On May 13, 2013, Davis Creek and Pourfarhadi filed an answer denying all
allegations set forth in the complaint and asserting that neither Hirsi nor Salem was the
lawful owner of the car and thus had no right to sell it, rendering the alleged contract
invalid. Davis Creek and Pourfarhadi also filed counterclaims "sounding in contract,
principal-agency, fraud, conversion, civil theft, tortious interference in business, forgery,
[and] claims for frivolous lawsuits" against Hirsi and Salem. (May 13, 2013 Answer and
Countercl. at 2.) Davis Creek and Pourfarhadi allege that they were barred from the
auction for one month as a result of the sale of Hirsi's car under Davis Creek's permit.
Davis Creek and Pourfarhadi also allege that Hirsi and Salem filed a false police report by
claiming that the car that sold at the auction was titled in their names, when it was not.
Davis Creek and Pourfarhadi claim to have lost $150,000 in business as a direct and
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proximate cause of Hirsi's and Salem's actions. They also claim entitlement to punitive
damages in excess of $250,000.
{¶ 9} On June 7, 2013, Hirsi and Salem filed an answer denying the allegations
set forth in the counterclaims.
{¶ 10} By judgment entry filed June 10, 2013, the Franklin County Municipal
Court transferred the case to the Franklin County Court of Common Pleas because the
amount of damages counterclaimed exceeded the municipal court's jurisdiction.
{¶ 11} On July 7, 2014, Hirsi and Salem moved for summary judgment on Davis
Creek and Pourfarhadi's counterclaims.
{¶ 12} Also on July 7, 2014, Davis Creek and Pourfarhadi filed a motion for partial
summary judgment as to Hirsi and Salem's breach of contract claim, reiterating their
argument that Hirsi and Salem never held title to the car and thus were not the lawful
owners and, consequently, there could not be a valid contract to sell the car. Davis Creek
and Pourfarhadi also sought summary judgment on their counterclaim of civil theft
against Hirsi and Salem.
{¶ 13} On July 21, 2014, Davis Creek and Pourfarhadi dismissed their
counterclaims for contract, principal-agency, and frivolous lawsuits.
{¶ 14} By judgment entry filed September 29, 2014, the trial court ruled on the
parties' summary judgment motions. It granted Hirsi and Salem's motion for summary
judgment on the civil theft counterclaim, finding that it was barred by the statute of
limitations, but denied summary judgment as to the remaining counterclaims for fraud,
conversion, tortious interference with business relations, and forgery.
{¶ 15} The trial court simultaneously denied Davis Creek and Pourfarhadi's motion
for summary judgment on Hirsi and Salem's breach of contract claim, finding that it could
not "discern whether the parties ever had an agreement to sell the car. Whether an
agreement existed is a genuine issue of material fact. And, without an agreement, title
issues are moot." (Sept. 29, 2014 Entry at 6.)
{¶ 16} The remaining claims proceeded to trial, with jury selection occurring on
March 9, 2015. At the time of jury selection, Hirsi and Salem's trial counsel filed a motion
requesting that Davis Creek and Pourfarhadi's claims for compensatory damages be
bifurcated from their claim for punitive damages pursuant to R.C. 2315.21. The trial
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No. 15AP-415
court granted the motion over the objections of opposing counsel, and the case was tried
in a bifurcated jury trial March 9 through 12, 2015.
{¶ 17} At trial, Hirsi testified she had bought the car from Alex Auto Sales on
March 1, 2011. She testified further that she met with Pourfarhadi three days later, on
March 4, 2011, at which time he agreed to sell the car and give her the money. She stated
that she had forgotten about the title, and Pourfarhadi did not ask her for it. She
acknowledged that she never signed it and never registered the car in her name.
{¶ 18} Salem testified that he had known Pourfarhadi approximately 20 years and
had worked for him about 8 years. He stated that, through Pourfarhadi, he had
purchased over 400 cars from different auctions. Salem described the work he performed
for Pourfarhadi, which included depositing checks into Davis Creek's bank account,
signing bills of sales for customers, signing titles, and flipping titles.
{¶ 19} With respect to Hirsi's car, Salem initially testified that he was with Hirsi
when she obtained the car from Alex Auto Sales on March 1, 2011. Salem further testified
that he filled out the bill of sale with the information provided by Hirsi, and then gave it to
an employee of Alex Auto Sales to complete and sign. The Alex Auto Sales employee
signed the title on the reverse side and returned it to Salem, who gave it to Hirsi.
However, Salem later acknowledged that he converted the cash provided by Hirsi into a
cashier's check made payable to Ohio Auto Auction to pay for the car on October 21, 2010.
{¶ 20} According to Salem, he contacted Pourfarhadi in early March 2011 about
selling Hirsi's car. Salem testified that he did not remember who sold Hirsi's car at the
auction. His testimony was inconsistent as to whether he was at the auction when Hirsi's
car sold, initially stating he was there to sell two cars for customers, but later testifying
that he was not at the auction when the car sold. Salem denied selling Hirsi's car at the
auction, stating that Pourfarhadi sold it.
{¶ 21} Salem testified that after the auction, Pourfarhadi handed him three
Manheim Ohio checks, one for Hirsi's car and one for each of Salem's two customers. The
checks were payable to Davis Creek and totaled $24,795.2 Salem took the checks to Davis
2Manheim Ohio issued three checks to Davis Creek, one for each of three vehicles that sold at the auction on
or about March 15, 2011: (1) a check in the amount of $13,990, dated March 15, 2011 for a 2005 Mercedes
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No. 15AP-415
Creek's local bank and deposited them. The record reflects that all three checks were
deposited to the Davis Creek account on March 15, 2011. It is not clear from the record
whether Salem intended to deposit the checks into Davis Creek's bank account or a
different bank account, but the checks initially were deposited in the Davis Creek account.
The $24,795 then was moved into the account of the person who had loaned Hirsi some of
the money to buy the car, before being moved back to the Davis Creek account. Salem
attributed any mistake in handling the money to the bank teller.
{¶ 22} Salem testified that he later found out that Pourfarhadi did not release the
sales proceeds because he was upset with Salem for an incident that happened at the
auction.
{¶ 23} Salem acknowledged receiving from Pourfarhadi two checks payable to him,
one dated April 6, 2011, in the amount of $12,330,3 and the other dated April 11, 2011 in
the amount of $10,000. According to Salem, however, none of that money represented
proceeds from the sale of Hirsi's car.
{¶ 24} The testimony of the owner of A & S Auto Sales ("A & S") provided a
different account of when, and from whom, Hirsi bought the car. A & S's owner testified
that his company, not Alex Auto Sales, sold the car to Hirsi, and explained how the owner
of Alex Auto Sales used A & S's location to work as a wholesaler. A & S's owner initially
testified that he was present at the time of sale and confirmed that Hirsi paid him for the
car.
{¶ 25} A & S's owner testified further, however, that Hirsi used the car for awhile,
then decided to sell it. He stated that he had tried "to sell the car for her for a long time
and didn't sell, and then [Salem] decide he's going to sell it again at the auction." (Mar. 10,
2015 Tr. Vol. II at 155.)
{¶ 26} The testimony of A & S's owner indicated that the car had not been on the
lot of Alex Auto Sales when Hirsi bought it and that Salem actually had purchased the car
at auction under Alex Auto Sales' permit in 2010. When questioned about the validity of
the bill of sale dated March 1, 2011 that Alex Auto Sales provided to Hirsi, the owner of
(Hirsi's car); (2) a check in the amount of $2,815, dated March 15, 2011, for a 2000 Dodge; and (3) a check
in the amount of $7,990, dated March 16, 2011, for a 2001 BMW.
3 The check was made payable to Mohamed Salem in the amount of $12,330, but when Pourfarhadi's trial
counsel questioned Salem about the check, counsel erroneously stated the check amount as $12,350.
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No. 15AP-415
A & S stated that the date on the bill of sale did not matter. His testimony as to how long
Hirsi had the car before deciding to sell it at auction also appears to contradict Hirsi's and
Salem's accounts:
Q: So I just want to confirm just one more time. It's your
testimony that you never had a 2005 Mercedes-Benz on the
Alex Auto Sales lot, yes or no?
A: No, I was having it on the lot for some time.
Q: You had it on the lot?
A: Yes.
Q: When did you have it on the lot?
A: Okay. He buys a car; they deliver the car. They keep it
couple days. He come take it. So after two months, hey, can I
take another car from you and leave that? He leave it for a
month, two months. You know what, they can't sell it. Let's
run it through the auction. That's how we work. But whatever
was on the lot, it belong to them.
Q: I think you told Detective Ruslander at the Grove City
Police Department that the Mercedes-Benz was never on the
lot.
A: Again, that point it doesn't make any difference. At that
pont [sic] it doesn't make any different [sic] whether it's on
the lot or not on the lot. In the end, it belongs to them. The lot
-- whatever [sic] it came, he took it. Then she tried to trade it
in. So the lot doesn't change anything. I don't understand your
point really. Like, what's make a difference to you?
(Tr. Vol. II at 161-62.)
{¶ 27} In response to questions from the trial court, the owner of A & S testified
that the owner of Alex Auto Sales bought the car from Manheim Ohio at Salem's request.
The auction delivered the car to A & S's location and, a couple days later, Salem came in,
took the bill of sale, and sold the car to Hirsi. A couple of months after that, Hirsi and
Salem returned with the car to trade it in. The owner of A & S testified that he tried to sell
it but could not get the price Hirsi and Salem wanted.
{¶ 28} An assistant manager of Manheim Ohio also testified, stating that he knew
both Salem and Pourfarhadi, that Salem was known as Pourfarhadi's representative at the
auctions, and that Pourfarhadi allowed Salem to sell his own automobiles at Manheim
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No. 15AP-415
Ohio auctions under Davis Creek's permit. He also testified that he had found no record
that Pourfarhadi had ever been suspended from doing business at Manheim Ohio.
{¶ 29} Relying on Manheim Ohio's business records, the assistant manager
testified that Hirsi's car had traded hands several times at the auction under different
dealers. Manheim Ohio's records showed that Hirsi's car sold under Davis Creek's permit
on March 8, 2011, but that the buyer withdrew due to defects with the car. The auction
did not have a record of the individual seller of that car—only that it sold under Davis
Creek's permit. The auction records reflected that there was no title present for the car at
the time of that sale. Manheim Ohio's records reflect that the car then sold for $14,250
under Davis Creek's permit on March 15, 2011. The record further reflects that Manheim
Ohio deducted fees totaling $260 from the sale price, leaving proceeds in the amount of
$13,990. On March 15, 2011, Manheim Ohio issued a check payable to Davis Creek in the
amount of $13,990 for the sale of the car.
{¶ 30} Pourfarhadi testified that he had engaged Salem to represent Davis Creek
and himself at Manheim Ohio, and that he had allowed Salem to pick up Manheim Ohio
auction checks made payable to Davis Creek. Pourfarhadi stated that he never paid Salem
for representing him at Manheim Ohio, but allowed Salem to buy or sell cars through
Davis Creek. He testified that he never gave Salem power of attorney to buy or sell cars
for Davis Creek at auction, to sign his own name or Pourfarhadi's name to titles, bills of
sale, purchase agreements, sale agreements, checks or other documents. He testified that
Salem "was an independent contractor and he was a gofer. That's all." (Tr. Vol. II at 243.)
{¶ 31} Pourfarhadi testified that he never entered into an oral contract regarding
Hirsi's car and denied receiving any title from Hirsi. Further, he denied personally selling
any 2005 Mercedes Benz at auction around March 2011. He testified that he had
approved Salem's request in February or March 2011 to sell some cars under Davis
Creek's permit but did not know the make of any of the cars Salem intended to take to
auction. Pourfarhadi testified that he learned that Salem had sold a Mercedes Benz under
Davis Creek's permit when the sale went to arbitration after the buyer withdrew due to
defects with the car. Pourfarhadi stated he asked Salem "to pick it up and take it back."
(Tr. Vol. II at 192.)
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No. 15AP-415
{¶ 32} Pourfarhadi testified that he also went to arbitration regarding Salem selling
cars under Davis Creek's permit and buying the same cars under another dealer's permit.
{¶ 33} Pourfarhadi testified that, after the three Manheim Ohio checks totaling
$24,795 were deposited in Davis Creek's bank account, that amount of money was
withdrawn from the account without his knowledge. Pourfarhadi and the bank
investigated and determined that Salem had deposited the money, withdrawn it, and
asked the bank to transfer the money to someone else's account, "and he acted like it was
me." (Tr. Vol. II at 199.) Pourfarhadi acknowledged that the bank redeposited the entire
$24,795 into Davis Creek's bank account.
{¶ 34} Pourfarhadi testified that he fired Salem in March 2011. He further testified
that he paid Salem $22,300 in April 2011 as final payment for cars Salem had sold at
auction under Davis Creek's permit, including Hirsi's car. Payment was made in the form
of two Davis Creek checks, one for $12,330 dated April 6, 2011, and the other for $10,000
dated April 11, 2011. As noted earlier, Salem acknowledged receiving and cashing those
checks, although he denied that any of that money was for Hirsi's car.
{¶ 35} Pourfarhadi also testified regarding the amount he was alleging for damages
as a result of Salem's fraud, conversion, tortious interference in business, and forgery.
{¶ 36} At the conclusion of the trial, the jury returned a verdict in favor of Hirsi
and Salem on their breach of contract claim against Davis Creek, and awarded $13,990 in
compensatory damages. The jury found Pourfarhadi not liable on the breach of contract
claim. The jury further found Hirsi and Salem not liable on Davis Creek and
Pourfarhadi's counterclaims for forgery, tortious interference with business relations,
conversion, and fraud.
{¶ 37} Davis Creek and Pourfarhadi timely appealed.
II. ASSIGNMENTS OF ERROR
{¶ 38} Davis Creek and Pourfarhadi present four assignments of error for our
review:
[1.] Whether the trial court erred by failing to admit
Appellants' evidence, including an Affidavit by Appellants
which was submitted as part of Appellants' testimony on the
merits, and including the certified BMV record which
reflected that there was no certificate of title to the subject
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No. 15AP-415
automobile held by Appellees, and including evidence from
the police that the subject automobile had been stolen.
[2.] Whether the trial court erred by erroneous jury
instructions which were not submitted for final approval to
Appellants' counsel, and whether the trial court erred by
failing to instruct the jury on the necessity for a certificate of
title to an automobile as a requisite of valid ownership of an
automobile.
[3.] Whether the jury verdict was against the manifest weight
of the evidence when the jury held in favor of Appellee on
Appellee's claim of breach of oral contract, and against
Appellant on claims of tortious interference with business,
fraud, conversion, and/or forgery.
[4.] Whether Appellants' constitutional guarantees of due
process were violated.
III. DISCUSSION
A. First Assignment of Error—Whether the Trial Court Should Have
Admitted Certain Evidence Proffered by Pourfarhadi
{¶ 39} A trial court generally has discretion to admit or exclude evidence, and its
decision will be reversed only upon a showing of an abuse of discretion. State ex rel. Van
Dyke v. Pub. Emps. Retirement Bd., 99 Ohio St. 3d 430, 2003-Ohio-4123, ¶ 43, citing
State ex rel. Sartini v. Yost, 96 Ohio St. 3d 37, 2002-Ohio-3317. " ' "The term 'abuse of
discretion' connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable." ' " State v. Weaver, 38 Ohio St. 3d
160, 161 (1988), quoting Martin v. Martin, 18 Ohio St. 3d 292, 295 (1985), quoting
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). This deferential standard
recognizes that credibility issues are left for the trier of fact. Brooks-Lee v. Lee, 10th Dist.
No. 11AP-284, 2012-Ohio-373, ¶ 13. "[A] reviewing court should not reverse a decision
simply because it holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law is a legitimate
ground for reversal, but a difference of opinion on the credibility of witnesses and
evidence is not." Id., quoting State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, ¶ 24,
citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984).
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No. 15AP-415
{¶ 40} In their first assignment of error, Davis Creek and Pourfarhadi argue that
the trial court's rulings to exclude certain defense exhibits offered into evidence are errors
of law. Davis Creek and Pourfarhadi sought to have admitted as evidence:
(1) Pourfarhadi's affidavit, (2) a certified BMV record, and (3) police records indicating
that Hirsi's car was a stolen vehicle.
{¶ 41} The trial court makes the initial determination of admissibility in
accordance with Evid.R. 104(A). The admission or exclusion of evidence lies in the trial
court's sound discretion. State v. Belton, __ Ohio St.3d __, 2016-Ohio-1581, ¶ 128,
citing State v. Sage, 31 Ohio St. 3d 173 (1987), paragraph two of the syllabus. "An abuse of
discretion occurs where a trial court's attitude is unreasonable, arbitrary, or
unconscionable." Delta Fuels, Inc. v. Ohio Dept. of Transp., 10th Dist. No. 15AP-28,
2015-Ohio-5545, ¶ 51, citing Blakemore. We also review the decision of the trial court
for abuse of discretion with the understanding that if the trial court erred on a question
of law, even with respect to an evidentiary issue, such is an abuse of discretion. Pontius
v. Riverside Radiology & Interventional Assocs., 10th Dist. No. 15AP-906, 2016-Ohio-
1515, ¶ 15.
{¶ 42} A central issue the jury had to decide in this case was whether the parties
had entered into an oral contract under which Hirsi and Salem had agreed to transfer
Hirsi's car and the car's title to Pourfarhadi, who had agreed to sell the car at auction
under Davis Creek's permit and to remit to Hirsi and Salem the sale proceeds remaining
after auction fees had been paid.
{¶ 43} Certain facts are largely undisputed. Hirsi had purchased the car and
wanted to sell it. In early March 2011, Salem had Pourfarhadi's permission to sell some
cars at Manheim Ohio under Davis Creek's permit. On March 15, 2011, Hirsi's car sold for
$14,250 at Manheim Ohio under Davis Creek's permit. That same day, Manheim Ohio
issued three checks payable to Davis Creek totaling $24,795 for the sale of three cars,
$13,990 of which was for the sale of Hirsi's car, after deducting $260 in auction-related
fees from the sale proceeds. Salem deposited the three Manheim Ohio checks into Davis
Creek's bank account. In April 2011, Salem received payment in the amount of $22,300
from Pourfarhadi for cars Salem had sold at Manheim Ohio.
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No. 15AP-415
{¶ 44} Among the disputed facts in this case is whether Hirsi had lawfully
transferred the car's title to Davis Creek and/or Pourfarhadi. Hirsi and Salem argue that
they had performed their duty under the oral contract when they allowed Pourfarhadi to
take Hirsi's car with the unsigned certificate of title still in the car's glove compartment.
{¶ 45} R.C. 4505.03 provides as follows:
No person, except as provided in sections 4505.032 and
4505.05 of the Revised Code, shall sell or otherwise dispose of
a motor vehicle without delivering to the buyer or transferee
of it a certificate of title with an assignment on it as is
necessary to show title in the buyer or transferee; nor shall
any person, except as provided in section 4505.032 or 4505.11
of the Revised Code, buy or otherwise acquire a motor vehicle
without obtaining a certificate of title for it in the person's
name in accordance with this chapter.
{¶ 46} Hirsi testified throughout the proceedings that she had never signed the car
title provided by Alex Auto Sales or caused the title to be registered in her name. Nothing
in the record indicates that Hirsi was exempt from the provisions of R.C. 4505.03. Thus,
Hirsi, in order "to sell or otherwise dispose of the car," was required to deliver to Davis
Creek and/or Pourfarhadi a certificate of title containing the necessary assignment. Id.
{¶ 47} Davis Creek and Pourfarhadi offered as evidence a certified copy of the
record of the BMV, which the BMV had provided in response to a subpoena to produce
records in its possession regarding the title history of Hirsi's car. The certified record
indicated that the car had never been titled in the name of any of the parties.
{¶ 48} Hirsi and Salem's trial counsel objected to the admission of the certified
BMV record as hearsay because no one from the BMV had testified about the record. The
trial court sustained the objection for lack of foundation.
{¶ 49} We find that the trial court abused its discretion by excluding the certified
BMV record. In general, a certified government record is excepted from the hearsay rule.
The admissibility of public records and certified records as self-authenticating is governed
by several rules, including Civ.R. 44(A)(1), Evid.R. 803(8), 901(B)(7), and 902. See also
Freeman v. Ohio Dept. of Human Servs., 10th Dist. No. 95APE03-359, (Dec. 14, 1995).
Civ.R. 44(A)(1) provides as follows:
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No. 15AP-415
Authentication.
(1) Domestic. An official record, or an entry therein, kept
within a state or within the United States or within a territory
or other jurisdiction of the United States, when admissible for
any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied by a
certificate that such officer has the custody. The certificate
may be made by a judge of a court of record in which the
record is kept or may be made by any public officer having a
seal of office and having official duties in the political
subdivision in which the record is kept, authenticated by the
seal of his office.
And, pursuant to Evid.R. 803(8), qualifying public records and reports are not excluded
by the rule against hearsay, regardless of whether the declarant is available as a witness:
Public records and reports. Records, reports, statements, or
data compilations, in any form, of public offices or agencies,
setting forth (a) the activities of the office or agency, or (b)
matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other
law enforcement personnel, unless offered by defendant,
unless the sources of information or other circumstances
indicate lack of trustworthiness.
Staff Notes to Evid.R. 803(8) include this language:
[T]he rule permits introduction of public reports subject to
the exceptions enumerated. Several Ohio statutory provisions
accomplish a similar result. See, for example, R.C. 2317.39
and 2317.42 regarding public records. Also, authorizing public
records to be introduced into evidence as an exception to the
hearsay rule are numerous Ohio Supreme Court cases
including: Howells v. Limbeck (1960), 172 OS 297, 16 OO2d
68, 175 NE2d 517 (court records); Carson v. Metropolitan Life
Insurance Company (1951), 156 OS 104, 45 OO 103, 100
NE2d 197 (records of coroner); and more recently the court
held at R.C. 2317.42 authorizes admission of public records as
evidence unless the statements contained in the record are
themselves hearsay, recognizing the familiar "totem pole"
hearsay problem. Westinghouse Electric v. Dolly Madison
Leasing & Furniture Corp. (1975), 42 OS2d 122, 71 OO2d 85,
326 NE2d 651.
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No. 15AP-415
{¶ 50} Evid.R. 901(A) provides generally that "[t]he requirement of authentication
or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims."
"This low threshold standard does not require conclusive proof of authenticity, but only
sufficient foundational evidence for the trier of fact to conclude that the document is what
its proponent claims it to be." (Emphasis omitted.) State v. Easter, 75 Ohio App. 3d 22
(4th Dist.1991), citing 1 Weissenberger, Ohio Evidence, Section 901.2 at 4-5 (1991).
Evid.R. 901(B) offers examples of authentication or identification conforming to the
requirements of the rule. Evid.R. 901(B)(7) describes public records and reports:
Public records or reports. Evidence that a writing authorized
by law to be recorded or filed and in fact recorded or filed in a
public office, or a purported public record, report, statement,
or data compilation, in any form, is from the public office
where items of this nature are kept.
The Staff Notes to Ohio Evid.R. 901(A) indicate that "certain writings, admissible as
evidence, need not be authenticated as a condition precedent to admissibility. Such
writings, particularly certain public documents, are said to be self-authenticating. Rule
902 governs admissibility by self-authentication."
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
***
(4) Certified copies of public records. A copy of an official
record or report or entry therein, or of a document authorized
by law to be recorded or filed and actually recorded or filed in
a public office, including data compilations in any form,
certified as correct by the custodian or other person
authorized to make the certification, by certificate complying
with paragraph (1), (2), or (3) of this rule or complying
with any law of a jurisdiction, state or federal, or rule
prescribed by the Supreme Court of Ohio.
Evid.R. 902(4). The certification attached to the BMV record included this language on
its face:
This certifies that a search has been made of the files and
records of the Ohio Registrar of Motor Vehicles, that the
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attached documents are true and accurate copies of the files or
records of the Registrar, and that the Registrar's official seal
has been affixed in accordance with Ohio Revised Code (ORC)
4501.34(A), which states, in part "[The Registrar] shall adopt
a seal bearing the inscription 'Motor Vehicle Registrar of
Ohio.' The seal shall be affixed to all writs and authenticated
copies of records, and when it has been so attached, such
copies shall be received in evidence with the same effect as
other public records. All courts shall take judicial notice of the
seal."
(Defs.' Ex. 5.) The certification bore the signature of the BMV Records Request Clerk and
the official seal of the Motor Vehicle Registrar of Ohio.
{¶ 51} There is also some statutory guidance on this issue at least by analogy. R.C.
2907.39(E) contains specific language about certified records of drivers' licenses and state
identification cards issued by the BMV in cases when minors use false identification to
gain access to adult entertainment establishments. In such cases, when an affirmative
defense is raised in a criminal action against the operator, the "registrar of motor vehicles
or the deputy registrar * * * shall be permitted to submit certified copies of the records, in
the registrar's or deputy registrar's possession, of the issuance of the license or
identification card in question, in lieu of the testimony of the personnel of the bureau of
motor vehicles in the action." Id. Similar language can also be found in R.C. 2925.58
concerning affirmative defenses to unlawful sale of pseudoephedrine to minors and R.C.
2927.022 concerning affirmative defenses for the unlawful sale of cigarette, tobacco or
alternative nicotine products to minors. The jury should have had the benefit of reviewing
the certified record of the BMV in deciding this matter.
{¶ 52} The jury in this matter was required to wade through a morass of
inconsistent and contradictory testimony with respect to when, how, and by whom the car
in question was originally obtained, who owned the car at the time it sold on March 15,
2011, and who sold the car at Manheim Ohio. Because the inconsistences and
contradictions put into question the credibility of the witnesses, the certified BMV record
could have been helpful to the jury as it weighed and considered the evidence in this
matter. It was an abuse of discretion to exclude the evidence.
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{¶ 53} This Court finds that the trial court improperly excluded the certified, self-
authenticating BMV record of the title history of the car in question. A certified copy of a
government record maintained in the ordinary course of business speaks for itself; no
testimony is required from the authenticating agency.
{¶ 54} We, therefore, sustain Davis Creek and Pourfarhadi's first assignment of
error.
B. Second, Third, and Fourth Assignments of Error—Moot
{¶ 55} Because we have determined to reverse and remand based on Davis Creek
and Pourfarhadi's first assignment of error, the remaining assignments of error are moot
and are considered no further.
IV. CONCLUSION
{¶ 56} Accordingly, we sustain Davis Creek and Pourfarhadi's first assignment of
error and decline to consider their second, third, and fourth assignments of error, finding
them to be moot. This matter is hereby remanded to the Franklin County Court of
Common Pleas for a new trial consistent with this decision.
Judgment reversed and cause remanded.
TYACK and KLATT, JJ., concur.
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