author: SINGER, J.

text:
    Kyle OTTNEY, Appellant v. AL SOBB'S AUTO & TRUCK FRAME SERVICE, INC., et al. Appellees
    No. L-17-1086
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided October 5, 2018
    Thomas E. Cafferty, Toledo, for appellant.
    David G. Squillante, Toledo, for appellees.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, Kyle Ottney, appeals from the March 20, 2017 and November 4, 2016 judgments of the Toledo Municipal Court finding in favor of appellees, Al Sobb's Auto & Truck Frame Service, Inc. and Rick Moll, on appellant's complaint and dismissing appellees' counterclaims. Appellant appeals and asserts the following single assignment of error relating solely to the dismissal of his claims of a violation of the Ohio Consumer Sales Practices Act, R.C. Chapter 1345 ("OCSPA"):

The Trial Court's judgment was contrary to the manifest weight of the evidence.

For the reasons which follow, we reverse.

{¶ 2} This case arises out of the sale of a commemorative 25-year anniversary 1978 Corvette with a salvage title. Appellant sued appellee, Rick Moll, individually, and Al Sobb's Auto & Truck Frame for damages ($5,280 plus attorney fees, or $6,930 total) for breach of contract and a violation of the OCSPA. Appellant asserted the unfair or deceptive act was failing to provide a written estimate of the repair work to be performed as required by Ohio Adm.Code 109:4-3-13, failing to complete the work within eight weeks of the promised delivery date without offering a refund or renegotiating the contract as required Ohio Adm.Code 109:4-3-09(A)(2) ; and failing to provide appellant with a written receipt for deposits as required by Ohio Adm.Code 109:4-3-07(C). Appellee counterclaimed for breach of contract and to recover the cost of storage of $10 a day for 17 months.

{¶ 3} The case proceeded to a bench trial and on November 3, 2016, the trial court entered "judgment for defendant." We dismissed an appeal from this judgment finding it was not a final, appealable order because it did not resolve all of the claims against all of the parties. The trial court entered a nunc pro tunc entry on March 20, 2017, correcting its judgment to indicate that the court intended to dispose of all claims by entering a judgment for appellee. Again, we dismissed the appeal because the judgment did not dispose of all of the parties. On December 29, 2017, the trial court entered a second nunc pro tunc judgment granting judgment to both appellees and dismissing the counterclaims of both appellees, and we reinstated appellant's appeal.

{¶ 4} In his sole assignment of error, appellant first argues the trial court erred when it found appellees had not violated the OCSPA.

{¶ 5} A challenge to the weight of the evidence questions whether the greater amount of credible evidence was admitted to support the verdict than not. Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When weighing the evidence, the court of appeals must consider whether the evidence in a case is conflicting or where reasonable minds might differ as to the inferences to be drawn therefrom, but it cannot re-determine the facts. State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80-81, 461 N.E.2d 1273 (1984). The court of appeals must also make every reasonable presumption in favor of sustaining the verdict and judgment. Eastley , at ¶ 21, quoting Seasons Coal at 80, fn. 3, 461 N.E.2d 1273.

{¶ 6} The following evidence was admitted at trial. Appellee Moll testified that a customer, Robert Lee, brought the vehicle into appellee's shop in order to get it running and sell it. Appellee was able to start the vehicle and determined the engine was in good condition. He was unable to sell the vehicle for two-to-three months. Lee testified he purchased the car, with 29,007 miles, for $3,000 from "Skeeter" who, for unknown reasons, gave a rebuilt salvage title. Lee titled the vehicle in his girlfriend's name, Najae Johnson, because his license was suspended. Moll further testified Lee originally wanted $4,000 for the vehicle considering its condition but reduced the price to $2,500 because he needed the money.

{¶ 7} Moll knew appellant's father and learned that appellant was looking for a Corvette. Appellant's father took some pictures and sent them to appellant who lived out of town. The father did not testify at trial. Appellant testified he drove the vehicle before purchasing it. Appellant testified the parties orally agreed to a purchase price of $500. The Certificate of Title listed $500 as the purchase price. However, Lee testified he told appellant to show a sale for $500 on the title to lower the taxes Lee would pay in New York. Appellant wanted to have a friend repaint the vehicle, but he finally agreed to let someone in appellee's shop do the work for $3,760.

{¶ 8} Appellant testified he believed he was getting a good deal but he knew appellee was desperate for money to pay a debt. Also, appellant testified the value of the car was not as high as appellee testified because it is a salvaged car, not in original condition, and therefore, not a collector car. He also testified it was a generic 1978 Corvette, one of the highest production cars made in 1978 and an L82, the slowest model produced that year.

{¶ 9} It is undisputed that on August 26, 2014, appellant transferred $2,060 to appellee (which appellant testified covered $500 for the car and $1,560 to cover the cost of the paint and materials). He transferred an additional $200 on September 18, 2014, because he did not believe appellee had enough money to buy the paint. On September 30, 2014, appellant transferred $1,000 and on May 15, 2015, made a final payment of $1,000, for a total of $4,260.

{¶ 10} Appellant visited appellee's shop in early 2015, after the first couple of payments had been sent to Moll, to check on the progress of the painting job and took pictures which were admitted into evidence. He saw parts were missing from the vehicle and some of the paint had been stripped. Appellant testified he was concerned about sending the final payment to appellee because there was little progress being made despite discussions between appellant's father and appellee. However, appellant finally paid the full amount in May 2015, believing appellee would finish the car.

{¶ 11} Appellant testified he called appellee frequently to check on the repairs and appellee would say the vehicle would be finished in a month and later that the vehicle was being shipped to another dealership to be painted at a special body shop. Appellant continued to call appellee until appellee began ignoring appellant's phone calls. Appellant presented phone records from AT & T showing his numerous calls to appellee's shop from October 2 to November 1, 2015, with no incoming phone calls from appellee.

{¶ 12} Appellant testified he had to eventually file an action on February 11, 2016, and sought the injunctive relief of replevin. Appellee returned the vehicle five days later. After the vehicle was returned, appellant found it was in worse condition than when he purchased it. He testified the vehicle looked the same as it had in his photographs taken earlier in 2015. Furthermore, the taillights, other miscellaneous trim, gas caps, and stereo were not returned to him and the vehicle no longer starts. Appellant obtained estimates of the cost to paint the car in full and put the car back together. Appellant determined the cost to replace the missing taillights alone is approximately $2,700 based on the basic stock parts available on a Corvette website. Appellant also presented evidence of his attorney fees of $930 for 11 hours of work.

{¶ 13} Moll testified that when appellant's attorney contacted Moll, he denied the car had been sold for $500. At trial, he testified appellant still owed Moll $740 because they had agreed appellant would pay $2,500 for the car and one of Moll's employees would strip and paint the car for $2,500 within a reasonable time but under Moll's control of the timing to complete the job. He further testified the car was worth $2,500 because the parts alone were worth thousands of dollars. Lee testified Moll gave him $2,500 cash when the car was sold.

{¶ 14} Appellee testified the only documentation he had was a "Repair Order" because he considered this a sale between friends. The "Repair Order" admitted into evidence identified the "Job Order" as a "78 Corvette" and under the "Description or Work" section listed "strip and paint $2,500." The order did not identify the customer or include any signatures. Appellant denied ever having received this document. Appellees counterclaimed for storage charges of $10 a day from August 6, 2014, until December 2015, after appellant's replevin action was granted and appellant regained possession of the car. Appellee denied that any parts were missing when the car was returned. He testified parts which were removed in the process of stripping the car were placed inside the car. He also testified appellant already received the benefit of his bargain because the 120 hours of stripping already completed was worth at least $1,800-$2,000.

{¶ 15} In connection with such a consumer transaction, the OCSPA prohibits unfair or deceptive acts, R.C. 1345.02(A), or unconscionable acts or practices, R.C. 1345.03(A). R.C. 1345.02(A) provides:

(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.

And, R.C. 1345.03(A) provides:

(A) No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. Such an unconscionable act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.

It is undisputed that appellees are "engaged in the business of effecting or soliciting consumer transactions," R.C. 1345.01(C), and this transaction was a consumer transaction, as defined by R.C. 1345.01(A), because it involved the offering of a service to an individual for personal purposes by a seller engaged in the business of effecting or soliciting consumer transactions.

{¶ 16} R.C. Chapter 1345 further sets forth examples of what are deceptive acts or practices, R.C. 1345.02(B) and 1345.03(B). R.C. 1345.05(B)(2) gives the Ohio Attorney General the power to adopt substantive rules that further define unfair and deceptive acts.

{¶ 17} Regarding motor vehicle repairs or services, Ohio Adm.Code 109:4-3-13(A)(1) provides that:

(A) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service upon a motor vehicle where the anticipated cost exceeds fifty dollars and there has been face to face contact at the supplier's place of business during the hours such repairs or services are offered, between the consumer or his representative and the supplier or his representative, prior to the commencement of the repair or service for a supplier to:
(1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, to provide the consumer with a form which indicates the date, the identity of the supplier, the consumer's name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service. The form shall also clearly and conspicuously contain the following disclosures in substantially the following language:
"You have the right to an estimate if the expected cost of repairs or services will be more than fifty dollars. Initial your choice:
___ written estimate
___ oral estimate
___ no estimate"

Furthermore, it is a deceptive act or practice to "[f]ail, at the time of the signing or initialing of any document by a consumer, to provide the consumer with a copy of the document." Id. at (C)(15).

{¶ 18} While appellees assert the "Repair Order" admitted into evidence was given to appellant, he denied receiving it. Because of the lower court's sparse judgment, we do not know the basis for the court's ruling. However, even if the lower court found Moll more credible, the "Repair Order" does not contain the disclosure language required by this rule. The form did not contain appellant's name, did not contain a "date, * * * the consumer's name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service." Furthermore, the order did not "clearly and conspicuously contain a disclosure of the consumer's right to a written estimate."

{¶ 19} Appellees next argue there was no violation of the rule because there had been no face-to-face contact between appellant and appellees. We reject this argument because the rule specifically permits the face-to-face contact to be "between the consumer or his representative and the supplier." Appellant testified he was present before he purchased the vehicle and drove it. Alternatively, even if there had been no face-to-face meeting between appellant and appellee, appellant's father was clearly representing appellant's interest in negotiating the repair work with appellee. Finally, Ohio Adm.Code 109:4-3-13(B)(1) describes a corresponding duty where there has not been a face-to-face contact between the consumer and the supplier.

{¶ 20} Appellees also argue the "Repair Order" admitted into evidence was a quoted repair cost rather than an estimate, as allowed pursuant to Ohio Adm.Code 109:4-3-13(F). That section provides:

(F) In lieu of complying with the requirements of paragraphs (A)(1) and (B)(1) to (B)(4) of this rule, a supplier may provide a consumer, prior to the commencement of any repair or service, with a written quotation of the price at which the repair or service will be performed, which shall indicate that the quotation shall be binding upon the supplier for a period of five days, provided that the subject of the consumer transaction is made available to the supplier for the repair or service within that period.

{¶ 21} In the case before us the "Repair Order" could have been either an estimate or a quote because it lacked the required language which could distinguish it as one or the other. Even if appellees' "Repair Order" is a substitute quoted repair cost permitted by Ohio Adm.Code 109:4-3-13(F), the evidence is undisputed that the quotation did not comply with the rule because it did not "indicate that the quotation shall be binding upon the supplier for a period of five days" and also did not contain the identifying information implicitly required as a substitute for an estimate.

{¶ 22} While appellees assert that they substantially complied with the regulations, substantial compliance is irrelevant when the supplier is required by a regulation to specifically perform certain actions to avoid committing an unfair and deceptive act. When the Ohio Attorney General promulgated Ohio Adm.Code 109:4-3-13, it stated that "(A) It shall be a deceptive act or practice * * * for a supplier to * * * (1) [f]ail * * * to provide the consumer with * * * the anticipated cost of the repair or service," or provide for an alternative repair order which "(F) * * *shall indicate that the quotation shall be binding upon the supplier for a period of five days." (Emphasis added). While exceptions have been made for overlooking technical violations, Simons v. Cadillac , 8th Dist. Cuyahoga No. 43011, 1981 WL 169156, *2 (Apr. 2, 1981), and a bona fide error limits liability to actual damages, Zindle v. Hawks Appliance Serv., Inc. , 9th Dist. Summit No. 13016, 1987 WL 16660, *4 (Sept. 2, 1987), no court has applied a substantial compliance standard. The clear language of the statute provides that "any failure to comply with the regulations is deemed a 'deceptive act or practice.' " Erie Shore Builders v. Leimbach , 6th Dist. Huron No. H-99-034, 2001 WL 803952, at *2 (July 13, 2001) ; Zindle at *2-3, 4 ; Steger v. Superior Dodge, Inc. , 2d Dist. Montgomery No. CA 9165, 1985 WL 6944, at *1 (Oct. 11, 1985) ; Moyer Excavating & Trucking v. Lewis , 6th Dist. Huron No. H-84-11, 1984 WL 14421, *3 (Nov. 16, 1984).

{¶ 23} There are several cases which have dismissed a consumer's action on the ground that the consumer did not suffer any actual damage. Crull v. Maple Park Body Shop , 36 Ohio App.3d 153, 157, 521 N.E.2d 1099 (12th Dist.1987) (the majority of the court found that an estimate which stated, "[t]his estimate is for immediate acceptance," although contrary to the requirement of Ohio Adm.Code 109:4-3-13(F) by failing to indicate the quoted price was binding for five days, was not a deceptive act or practice since the supplier charged the quoted price and treated the quote as binding for several months); Cicero v. Am. Satellite, Inc. , 10th Dist. Franklin No. 10AP-638, 2011-Ohio-4918, 2011 WL 4477247, ¶ 19 (summary judgment granted to the supplier where the consumer had not been actually deceived by the violation of a specific OCSPA rule). However, a requirement of actual damages is contrary to the explicit language of R.C. 1345.09(B), which allows the consumer to collect $200 in statutory damages. Sterling Constr., Inc. v. Alkire , 12th Dist. Madison No. CA2016-12-032, 2017-Ohio-7213, 2017 WL 3475420, ¶ 13 ; Williams v. Kia of Bedford , 8th Dist. Cuyahoga, 2018-Ohio-283, 104 N.E.3d 924, ¶ 26-28 (the majority view is that plaintiffs may recover for each individual violation of the OCSPA "if there are separate rule violations caused by separate acts." (Citations omitted ); Crye v. Smolak , 110 Ohio App.3d 504, 512, 674 N.E.2d 779 (10th Dist.1996).

{¶ 24} Therefore, we find the trial court's finding that appellees had not violated either of these regulations is contrary to the manifest weight of the evidence.

{¶ 25} Appellant also argues the trial court's finding that appellees did not violate Ohio Adm.Code 109:4-3-09 by failing to complete the work within eight weeks or offer to refund was contrary to the manifest weight of the evidence.

{¶ 26} Ohio Adm.Code 109:4-3-09(A)(2) provides that it is a

(A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier:
* * *
(2) To accept money from a consumer for goods or services ordered by mail, telephone, or otherwise and then permit eight weeks to elapse without:
(a) Making shipment or delivery of the goods or services ordered;
(b) Making a full refund;
(c) Advising the consumer of the duration of an extended delay and offering to send the consumer a refund within two weeks if the consumer so requests; or
(d) Furnishing similar goods or services of equal or greater value as a good faith substitute if the consumer agrees.

{¶ 27} In this case, it is undisputed that appellees contracted to strip and repaint the vehicle but never completed the work during the nearly one and one-half years they had possession of the vehicle and released the vehicle to appellant only after he sought an order of replevin. Appellant testified he paid for the restoration work in full and was continually told the work would be done in a month and until Moll began to ignore appellant's calls. While appellee testified that appellant did not pay the repair bill in full, there was no evidence presented that he informed appellant the delay in completing the car was due to the lack of payment. It was not until appellant's attorney spoke to Moll that he claimed the cost of the car exceeded $500 and appellant owed $760 on the repair bill. There was no evidence presented that appellees notified appellant he had not paid the bill in full.

{¶ 28} Even if we found the time requirement of the regulation was amended by an oral agreement between the parties to allow the work to be completed in a "reasonable time," we find the manifest weight of the evidence supports a finding that appellees failed to comply with Ohio Adm.Code 109:4-3-09(A)(2). It is without question that appellees did not complete the repair "within a reasonable time" when appellant had to resort to filing a replevin action to regain possession of his vehicle, the work was not completed after 17 months, and appellant was never notified the repairs had not been completed because the bill had not been paid in full. Therefore, the trial court's finding that there was no violation is contrary to the manifest weight of the evidence.

{¶ 29} Finally, appellant alleges that appellees violated Ohio Adm.Code 109:4-3-07(C) by failing to provide appellant with a written receipt for deposits. Ohio Adm.Code 109:4-3-07 provides, in pertinent part:

It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to accept a deposit unless the following conditions are met:
* * *
(B) At the time of the initial deposit the supplier must provide to the consumer a dated written receipt stating clearly and conspicuously the following information:
(1) Description of the goods and/or services to which the deposit applies, (including model, model year, when appropriate, make, and color);
(2) The cash selling price and the amount of the deposit; "Cash selling price", for purpose of this rule, as it relates to motor vehicle transactions, includes all discounts, rebates and incentives;
(3) Allowance on the goods to be traded in or other discount, if any;
(4) Time during which any option given is binding;
(5) Whether the deposit is refundable and under what conditions, provided that no limitation on refunds in a layaway arrangement may be made except as provided by sections 1317.21 to 1317.23 of the Revised Code ; and
(6) Any additional costs such as storage, assembly or delivery charges.
(C) A written receipt stating the date and amount paid shall be provided to the consumer for each and every subsequent deposit made, which receipt shall also state the remaining amount due. A deposit made where the terms set forth in division (B) of this rule are altered or modified by agreement of the supplier and consumer shall not be considered as a subsequent deposit, but rather as an initial deposit.
(D) For the purposes of this rule "deposit" means any amount of money tendered or obligation to pay money incurred by a consumer for a refundable or non-refundable option, or as partial payment for goods or services.

{¶ 30} There was no evidence presented by appellees that they provided the deposit receipt required by the regulation or that the exception to the rule applied. Therefore, the trial court's failure to find that appellees did not comply with the regulation is contrary to the manifest weight of the evidence.

{¶ 31} Each regulation discussed above states that a violation of the regulation is a deceptive act or practice. Therefore, we find the trial court's judgment in favor of appellees on appellant's claim of a violation of the OCSPA is contrary to the manifest weight of the evidence and the trial court erred in dismissing this count of appellant's complaint. Appellant's sole assignment of error is found well-taken.

{¶ 32} Having found that the trial court did commit error prejudicial to appellant and that substantial justice has not been done, the judgment of the Toledo Municipal Court is reversed. Pursuant to App.R. 12(C), we hereby enter the judgment the lower court should have entered, which is judgment for appellant on Count 1 of his complaint. However, because the calculation of the damages requires consideration of the disputed factual evidence and the trial court never made any factual findings upon which we can determine the damage award, this case is remanded to the lower court for further proceedings to determine the damage award. Appellees are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

Christine E. Mayle, P.J. and Thomas J. Osowik, J., Concur.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    Pattiann MCADAMS, Plaintiff-Appellant, v. MERCEDES-BENZ USA, LLC, et al., Defendants-Appellees.
    No. 17AP-120
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on October 9, 2018
    On brief: Luper Neidenthal & Logan, LPA, Gregory H. Melick, and Matthew T. Anderson, Columbus, for appellant. Argued: Matthew T. Anderson.
    On brief: Benesch, Friedlander, Coplan & Aronoff, LLP, Jennifer M. Turk, Columbus, and Michael J. Meyer, Cleveland, for appellees. Argued: Jennifer M. Turk.
    DECISION
   BRUNNER, J.

{¶ 1} Plaintiff-appellant, Pattiann McAdams, appeals a judgment of the Franklin County Court of Common Pleas entered on January 20, 2017, granting summary judgment to defendants-appellees, Mercedes-Benz USA, LLC ("Mercedes USA") and Mercedes-Benz of Easton ("Mercedes Easton") (collectively, "Mercedes"). We agree with the trial court that Mercedes successfully demonstrated that the evidence on which McAdams intended to rely to prove her claims regarding her vehicle's transmission was her own inadmissible lay opinion instead of an expert opinion and, as such, was insufficient to preserve a genuine issue of material fact for trial on all of her claims. Even though McAdams successfully opted out of a class action in order to pursue her own litigation, she was unable to show by the evidence that a genuine issue of material fact remained affecting whether she may have been entitled to judgment on all her claims as a matter of law. Thus, we affirm summary judgment with respect to McAdams' transmission-related claims and reverse with respect to her balance shaft gear claims.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 23, 2015, McAdams filed a pro se complaint against Mercedes in the Franklin County Court of Common Pleas. (Feb. 23, 2015 Compl.) She complained of mechanical problems she experienced with her 2006 ML350, a type of sport-utility vehicle manufactured by Mercedes USA and sometimes serviced by Mercedes Easton. She alleged that Mercedes was liable for repair and replacement costs to correct a defective balance shaft gear and an allegedly defective transmission conductor plate which McAdams had been compelled to replace during her ownership of the SUV, partially at her own expense. Both Mercedes USA and Mercedes Easton filed answers. (Apr. 27, 2015 Mercedes Easton Answer; Apr. 27, 2015 Mercedes USA Answer.)

{¶ 3} Approximately one and one-half year later, on October 31, 2016, Mercedes filed a motion for summary judgment. (Oct. 31, 2016 Mot. for Summ. Jgmt.) Principally, Mercedes' motion was based on three arguments: They argued that McAdams'

claims about mechanical problems with the balance shaft gear were foreclosed by a class action that included McAdams, and she did not opt out of that litigation. Id. at 1, 7-11. Mercedes also argued that McAdams had no evidence except her inadmissible lay opinion instead of an expert opinion that problems with her vehicle's transmission existed and should have been diagnosed while the vehicle was still under warranty. Id. at 1-2, 7-20. Finally, Mercedes argued that McAdams had admitted that she did not purchase the vehicle from any of the defendants and that there was a lack of privity to support any potential breach of contract claim. Id. at 2, 20-21. To support summary judgment, Mercedes filed the deposition of McAdams containing exhibits A-G and documents (exhibits A-E) evidencing the class-action lawsuit from the United States District Court for the Northern District of California.

{¶ 4} On December 14, 2016, McAdams (who had by this time retained counsel) filed a memorandum contra the motion for summary judgment. (Dec. 14, 2016 Memo. Contra.) McAdams argued that Mercedes waived their res judicata defense based on the class action suit because they failed to raise it in their answers, that McAdams had effectively opted out of the class by filing the present suit, and that genuine issues of material fact existed as to the other parts of her lawsuit. Id. at 1, in passim. McAdams attached to her memorandum contra a copy of the vehicle master inquiry for her ML350, a copy of Mercedes' response to her pro se discovery requests, and a copy of a notice of the class action settlement.

{¶ 5} On January 20, 2017, the trial court ruled against McAdams and in favor of Mercedes on all three of Mercedes' arguments for summary judgment. (Jan. 20, 2017 Decision & Entry.) The trial court reasoned that McAdams' membership in the class was undisputed as was the fact that she never formally opted out. Id. at 4. It held her to be bound by the class action settlement and that her current claims regarding the balance shaft gear to be subject to res judicata. Id. The trial court concluded that both Mercedes USA and Mercedes Easton had properly raised the defense of res judicata in their answer when they pled a defense of "estoppel." Id. at 4-5. Notwithstanding scholarly and out-of-jurisdiction authority for the proposition that filing an individual lawsuit can constitute an opt-out, the trial court found that Ohio law binds class members to class action results in the absence of a formal opt-out. Id. at 5.

{¶ 6} The trial court found that McAdams' only evidence that the transmission conductor plate was defective from its time of manufacture or damaged early enough in her ownership of the SUV that it should have been detected and fixed while still under warranty came from McAdams' own testimony. Id. at 6-8. The trial court found that McAdams was not an expert and not qualified to testify to such matters. Id. It, therefore, did not find that her testimony created a genuine issue of fact and found against her. Id.

{¶ 7} As for McAdams' contract claim, the trial court construed the pleadings to allege a breach of the warranty contract, notwithstanding the fact that McAdams' pro se complaint appeared to allege a breach of the original purchase contract. Id. at 7; Compl. at ¶ 80-83. The warranty is the only contract in the record to which any defendant could arguably have been a party. (Decision & Entry at 7.) The trial court found the only arguable breach of the warranty in the record was the failure to diagnose and repair the transmission conductor plate under warranty in 2011. (Decision & Entry at 7.) Again, the trial court found McAdams' opinion about the condition of the transmission plate in 2011 to be inadmissible and it found in favor of Mercedes. Id.

{¶ 8} McAdams now appeals.

II. ASSIGNMENTS OF ERROR

{¶ 9} McAdams asserts two assignments of error for review:

[1.] The trial court erred in granting summary judgment, as Appellant's balance gear shaft claims are not barred by the class action settlement in Seifi v. Mercedes-Benz .
[2.] The trial court erred in granting summary judgment, as numerous disputed issues of material fact exist concerning Appellant's claims relating to the transmission conductor plate.

III. DISCUSSION

A. Standard of Review

{¶ 10} Civ.R. 56(C) provides that:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The Supreme Court of Ohio has explained:

Summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C) ; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op. 3d 466, 364 N.E.2d 267. The burden of showing that no genuine issue of material fact exists falls upon the party who files for summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 1996-Ohio-107, 662 N.E.2d 264.

Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10 ; see also, e.g., Esber Beverage Co. v. Labatt USA Operating Co., L.L.C. , 138 Ohio St.3d 71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9.

{¶ 11} "Only facts which would be admissible in evidence can be * * * relied upon by the trial court when ruling upon a motion for summary judgment." Tokles & Son, Inc. v. Midwestern Indemn. Co. , 65 Ohio St.3d 621, 631, fn. 4, 605 N.E.2d 936 (1992) ; see also, e.g. , Guernsey Bank v. Milano Sports Enters. , 177 Ohio App.3d 314, 2008-Ohio-2420, 894 N.E.2d 715, ¶ 59 (10th Dist.) ; Cunningham v. Children's Hosp. , 10th Dist. No. 05AP-69, 2005-Ohio-4284, 2005 WL 1983374, ¶ 18. But, in deciding summary judgment, the trial court must give the nonmoving party "the benefit of all favorable inferences when evidence is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. When reviewing a trial court's decision on summary judgment, our review is de novo, and we, therefore, apply the same standards as the trial court. Westfield Ins. Co. v. Hunter , 128 Ohio St.3d 540, 2011-Ohio-1818, 948 N.E.2d 931, ¶ 12 ; Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24 (2002).

B. First Assignment of Error - Whether the Trial Court Erred in Concluding that McAdams was Bound by the Class Settlement

{¶ 12} The trial court found that the parties had not disputed that McAdams would be a member of the class assuming she did not validly opt-out and that she never formally opted out. (Decision & Entry at 4.) On appeal, McAdams still does not contest those facts but rather argues that Mercedes failed to preserve their claim of res judicata based on the class action settlement and, in any case, filing this action amounted to an opt-out. Thus, we accept the undisputed facts as found by the trial court and instead turn to address the related legal questions.

1. Whether Defendants Sufficiently Raised Res Judicata

{¶ 13} McAdams argues that res judicata is a defense that must be raised in the first responsive pleading. Civ.R. 8(C) ; Civ.R. 12(B) ; State ex rel. Deiter v. McGuire , 119 Ohio St.3d 384, 2008-Ohio-4536, 894 N.E.2d 680, ¶ 28 ; Jim's Steak House v. Cleveland , 81 Ohio St.3d 18, 20, 688 N.E.2d 506 (1998) ("While res judicata was the bone of contention between the parties in the court of appeals, we instead find for Jim's for the reason that the city never filed an answer to Jim's amended complaint, and therefore waived its opportunity even to raise res judicata as an affirmative defense."). (Emphasis sic.)

{¶ 14} In both Mercedes USA's and Mercedes Easton's answers, the fourth defense reads, "[p]laintiff's claims are barred, in whole or in part, by the doctrines of waiver and estoppel." (Mercedes Answer at ¶ 87; Mercedes Easton Answer at ¶ 87.) The trial court found that this was sufficient under the principle of liberal pleading standards to constitute a pled defense of res judicata. (Decision & Entry at 4-5.) McAdams disagrees. She notes, for example, that Ohio Rule of Civil Procedure 8(C) refers to estoppel and res judicata as separate items in its list of avoidances and affirmative defenses. (McAdams Brief at 16-17.) She thus argues raising one is insufficient to raise the other.

{¶ 15} McAdams' argument falls short of the analysis that legal concepts may have different labels but be part of an overall precept or doctrine. For example, estoppel is one name for a family of concepts that together are taken to form the doctrine of res judicata. As the Supreme Court has explained:

The doctrine of res judicata involves both claim preclusion (historically called estoppel by judgment in Ohio) and issue preclusion (traditionally known as collateral estoppel). Grava v. Parkman Twp. , 73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226 (1995), citing Whitehead v. Gen. Tel. Co. , 20 Ohio St.2d 108, 254 N.E.2d 10 (1969) and Krahn v. Kinney , 43 Ohio St.3d 103, 107, 538 N.E.2d 1058, (1989).

Brooks v. Kelly , 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d 385, ¶ 7. In other words, res judicata includes two types of estoppel, claim preclusion (estoppel by judgment) and issue preclusion (collateral estoppel). Given this fact, it would hardly be a liberal reading of the pleadings (as required by Civ.R. 8(C) ) to say that Mercedes did not plead res judicata when they pled "estoppel." Thus we agree Mercedes sufficiently pled res judicata to avoid waiving the defense.

2. Whether McAdams Sufficiently Opted-Out of the Class

{¶ 16} McAdams' deposition revealed that she was fully aware of the class action and had communicated with class counsel about whether or not she should join the class. (McAdams Dep. at 44-45, 138-39, 151-56.) She explained she decided not to join the class because it did not fully represent her grievances against Mercedes and testified she informed class counsel of her decision. Id. at 152-54. According to an April 8, 2015 notice from Mercedes USA, the deadline to opt-out of the class was June 27, 2015. (Ex. C, Dec. 14, 2016 Memo. in Opp., Class Action Notice at 4.) At the time the notice was issued in April 2015, McAdams (in addition to notifying class counsel of her decision) had already filed this lawsuit on February 23, 2015.

{¶ 17} The trial court found that McAdams had not successfully opted-out of the class because she had not formally done so. It rejected her argument that she could have opted-out by other informal means stating:

Plaintiff cites to a series of obscure cases from around the country, as well as a learned treatise. The problem with these citations is that they are in no way binding on this Court. The Court will follow well established Ohio precedent and find that Plaintiff was required to formally opt-out.

(Decision & Entry at 5.) We agree with the trial court that the cases cited by McAdams were not binding upon it, being out of jurisdiction. However, we were unable to find (and neither the trial court nor Mercedes has cited) any cases representative of a "well established Ohio precedent" dictating that opt-outs must be formal. Id. None of the three Ohio cases cited by Mercedes addresses the question of whether an opt-out must be formal in order to be considered sufficient. (Appellee Brief at 10, citing Chance v. BP Chemicals, Inc. , 77 Ohio St.3d 17, 19-20, 29, 670 N.E.2d 985 (1996) ; Bank of New York v. Jordan , 8th Dist. No. 88619, 2007-Ohio-4293, 2007 WL 2391082, ¶ 14 ; Schmidt v. AT & T, Inc. , 8th Dist. No. 94856, 2010-Ohio-5491, 2010 WL 4529066, ¶ 15.) For example, the prior history section of Chance merely remarked that the trial court denied a motion for leave to intervene and requested more time to consider whether to opt-out. The court in Chance did not discuss or consider what is adequate for opting-out. In the absence of binding precedent in this instance, we consider non-binding sources for guidance.

{¶ 18} In Seacor Holdings, Inc. v. Mason , the United States Fifth Circuit Court of Appeals summarized federal case law on what is adequate for opting-out:

Case law from other circuits and from the district courts suggests that an opt out request need not perfectly conform to the format chosen by the district court or the proposed settlement agreement to effectively express a desire to opt out of a class action settlement. For example, in In re Four Seasons Securities Laws Litigation , the Tenth Circuit concluded that notice of an intent to opt out was communicated by a letter sent to a trustee and the plaintiffs' attorneys from a class-member bank, inquiring whether the bank could submit a modified form so that it could remain a member of the class and still pursue a separate suit previously filed in state court. 493 F.2d [1288] at 1289-91 [ (1974) ] ; see also Self v. Ill. Cent. R.R. , No. CIV. A. 96-4141, 1999 U.S. Dist. LEXIS 6428, 1999 WL 262099, at *1-2 (E.D. La. Apr. 29, 1999) (construing a motion to remand a case to state court as sufficiently expressing an intent to opt out when 586 individual plaintiffs "vigorously opposed" removal and inclusion with the class action and following remand, proceeded in state court without notice of the need to opt out of the federal action); Bonner v. Tex. City Indep. Sch. Dist. of Tex. , 305 F.Supp. 600, 617 (S.D. Tex. 1969) (declining to certify a class action and relying on the trial testimony of three potential class members that they did not wish to be involved in the action in any way as evincing a desire to opt out of the potential class).
These decisions logically follow from the desire not to require class members "to retain counsel and prepare a formal legal document" in order to opt out while preventing excessive informal opt outs that "might pose problems of authenticity and ambiguity." 7AA CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 1787 (3d ed. 2005). In cases often involving hundreds of unrepresented and potentially unsophisticated parties, some courts have concluded that "considerable flexibility is desirable in determining what constitutes an effective expression of a class member's desire to be excluded." Id. Although we have not addressed the precise requirements for allowing class members to informally opt out of class settlements, other courts have concluded that reasonableness is key. Cf. In re Four Seasons , 493 F.2d at 1291 ("A reasonable indication of a desire to opt out ought to be sufficient." (emphasis added) ); Plummer v. Chem. Bank , 668 F.2d 654, 657 n.2 (2d Cir. 1982) ("Any reasonable indication of a desire to opt out should suffice." (emphasis added) ); Johnson v. Hercules Inc. , No. CV298-102, 1999 U.S. Dist. LEXIS 23974, 1999 WL 35648160, at *5 (S.D. Ga. Apr. 28, 1999) ("The Court requires nothing more, and nothing less, than an unequivocal, explicit, reasonable, and timely request for exclusion." (emphasis added) ).

Seacor Holdings, Inc. v. Mason (In re Deepwater Horizon) , 819 F.3d 190, 196 (5th Cir.2016).

{¶ 19} And although no state court in Ohio appears to have squarely determined what is adequate to opt-out of a class action, the United States District Court for the Southern District of Ohio has. In Frost v. Household Realty Corp. , 61 F.Supp.3d 740 (S.D.Ohio 2004), the Southern District discussed and applied a California decision, McCubbrey v. Boise Cascade Home & Land Corp. , 71 F.R.D. 62 (N.D.Cal.1976), in which that federal district court had considered several groups of potential class members who attempted to opt-out in different ways at different times. One particularly relevant group "consisted of respondents who filed suits after receipt of the class action notice but prior to termination of the opt-out period." Frost at 746. The Southern District recounted how the McCubbrey court treated that group as follows:

The court found that these respondents, by filing individual claims, had "expressed a desire not to participate in the settlement in a written document containing the information requested in the class notice ." [ McCubbrey , 71 F.R.D. at 69 ] (emphasis added). In making this determination, the court considered two opposing views used by authorities when determining the "degree of latitude to be afforded an absent member seeking exclusion from a class suit." Id. The more rigid view proclaims "that liberal relief from failure to follow requisite exclusion procedures will erode finality of complex adjudications, discourage class action settlements, permit return of the former option of one-way intervention, and place a burden on judicial resources." Id. (citing In re Four Seasons Sec. Litig. , 502 F.2d 834, 843-844 (10th Cir. 1974) ). In contrast, the more liberal view holds "that any reasonable expression of a request for exclusion should serve to relieve a class member from a class suit." McCubbrey , 71 F.R.D. at 70 (citing Bonner v. Texas City Indep. School Dist. , 305 F.Supp. 600 (D.Tex. [S.D. Tex.] 1969) ).
The McCubbrey court adopted the liberal view. First, it took into consideration the exclusionary requirements contained in the notice. To be excluded, interested parties needed to mail a written request for exclusion to the Attorney General's office on or before June 26, 1973. McCubbrey , 71 F.R.D. at 69. The written request should have contained the following: the party's name, current address, number of lots, and name of the petitioners' project or projects in which the lots were located. Id. According to the court, respondents' filing an individual claim satisfied all of the notice requirements, with the exception of mailing it to the identified address. Id. To the court, this was an adequate expression of a desire not to participate in the settlement. Id.
Furthermore, the court considered the attention given to the respondents' claims by the petitioners: "After receipt of the complaints, during the exclusion period, [petitioners'] counsel communicated with respondents' attorney to discuss the details of the litigation and to request additional time to file a responsive pleading." Id. at 71. The court found that this conduct signified acceptance by the petitioners of the class members' desire to opt out.

Frost at 746-47. The Frost decision adopted McCubbrey 's treatment but concluded that the parties in Frost had satisfied "only a few" requirements of the opt-out notice in filing their suit. Id. at 748. Thus, despite applying McCubbrey , the court in Frost found that the opt-out had been insufficient. Id.

{¶ 20} In this case, McAdams communicated with class counsel about whether or not she should join the class. She decided not to join the class, informed class counsel of her decision, and then sued Mercedes well before the deadline to submit an opt-out notice. (McAdams Dep. at 44-45, 138-39, 151-56; Class Action Notice at 4; Feb. 23, 2015 Compl.) The settlement notice required a signed opt-out letter to include the person's name, address, telephone number, VIN of the subject vehicle, dates of ownership, whether the person would be a class member in the absence of an opt-out, and the fact that the person seeks to opt-out. (Class Action Notice at 4.) McAdams' complaint was not signed and did not provide her telephone number. (Feb. 23, 2015 Compl.) But the complaint did provide her name, address, VIN number of the vehicle, dates of ownership, and a detailed recitation of the problems McAdams had experienced, which would have made clear to any reader that, but for her intention to pursue the case on her own, she could have been a class member. Id. at ¶ 1, 4, in passim. Particularly, given that she filed her complaint before the notice of how to opt-out was issued and continued to pursue the case even while the class action was ongoing, we find that her lawsuit was a sufficient "reasonable expression of a request for exclusion." Frost at 748.

{¶ 21} The trial court erred in concluding that McAdams' claims were res judicata as a result of the class action settlement. She opted-out of the class action and thus (notwithstanding the fact that Mercedes did not waive the defense of res judicata) McAdams' claims regarding the balance shaft gear are not res judicata. We, therefore, sustain McAdams' first assignment of error.

C. Second Assignment of Error - Whether the Trial Court Erred in Concluding that McAdams had Failed to Demonstrate a Genuine Issue of Material Fact as to the Elements of her Claims Regarding the Transmission Conductor Plate

{¶ 22} McAdams testified during her deposition that her ML350 Mercedes Benz model car had apparent difficulty accelerating in 2011. (McAdams Dep. at 27.) Records show that McAdams informed the service personnel that the gas pedal was sticking and that the SUV felt like it had no power. (Ex. B at 10, McAdams Dep.). Service personnel at Mercedes Easton informed her that they believed the issues were caused by the rug (floor mat) sticking under the gas pedal. Id. at 27, 30-31, 73-74, 159; Ex. B at 10, McAdams Dep. McAdams testified that the SUV accelerated fine after that visit. (McAdams Dep. at 74.) Repair records confirm that visit was in early March 2011. (Ex. B at 10, McAdams Dep.) McAdams' warranty expired later in March. (McAdams Dep. at 17-20.)

{¶ 23} Almost four years later, in January 2015, the SUV again failed to properly accelerate. (McAdams Dep. at 27-31; Ex. D at 1-2, McAdams Dep.) There is no evidence in the record about whether the gas pedal felt as if it was sticking on this occasion. Another Mercedes dealer that was not a defendant in this case diagnosed this acceleration problem as a faulty transmission conductor plate. (McAdams Dep. at 27-33; Ex. D at 1-2, McAdams Dep.) It made the necessary repairs at a cost of $1,181.37 to McAdams. (Ex. D at 2, McAdams Dep.) McAdams stated it was her opinion the transmission conductor plate had been faulty in 2011 and possibly when she bought the automobile in 2008. Id. at 20-21, 62-64, 139-41. She said she believed Mercedes Easton had not performed the proper diagnostics when her SUV had experienced problems in 2011 and instead had wrongly concluded the rug was to blame rather than the transmission conductor plate being the culprit. Id. at 63-64, 69. McAdams testified she believed that Mercedes knew about the transmission problem because they had issued a service bulletin relating to the transmission conductor plate. Id. at 159-64. She also testified she believed that the variety of problems with the SUV were related to one another. Id. at 120 ("Yes, I do feel like they were symptomatic of the same problem, yes.").

{¶ 24} However, McAdams admitted to a "limited knowledge of cars," that she had no experience working on vehicles, and had never performed any of her own repairs. Id. at 12-13, 144. She also admitted that she had no documentation regarding what diagnostic procedures Mercedes Easton performed in 2011. Id. at 69. And the "service bulletin" which McAdams referenced in her deposition was not a Mercedes document but, rather, a post from a publicly accessible website. (Ex. F at 18-19, McAdams Dep.; McAdams Dep. at 159-64.) Moreover, the purported service bulletin was dated April 8, 2011, and post-dated both McAdams' purchase of the SUV and the expiration of her warranty. (Ex. F at 18-19, McAdams Dep.; McAdams Dep. at 16-20, 164-67.)

{¶ 25} The trial court concluded that McAdams was unqualified to offer an opinion about whether the transmission conductor plate in her SUV was defective or whether it was malfunctioning in 2011 such that Mercedes Easton should have discovered it and repaired it under warranty at that time. (Decision & Entry at 5-8.) The trial court found that Mercedes had correctly pointed out the evidence McAdams relied on was her own inadmissible opinion, unsubstantiated by either expertise or personal knowledge and, on that basis, it granted summary judgment to Mercedes. Id. In her brief, McAdams offers two primary arguments against this conclusion. She argues that Mercedes did not submit any evidence to support their motion for summary judgment and, thus, failed to carry their burden under Civ.R. 56, and she was giving a permissible lay opinion under Evid.R. 701 in her deposition. (McAdams Brief at 25-38.) At oral argument, McAdams' counsel also argued the existence of the "service bulletin" as evidence corroborating McAdams' opinion that the transmission conductor plate was defective or damaged during the period of her warranty.

{¶ 26} The Supreme Court has discussed the relative burdens of movants and nonmovants in summary judgment cases:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden 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 material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). McAdams argues that Mercedes failed to meet this standard because they submitted no evidence from their own technicians and employees. (McAdams Brief at 28, 34-35.)

{¶ 27} Though the initial burden on a motion for summary judgment belongs to the movant, the ultimate burden of proving the case still belongs to the plaintiff. Thus, while the "moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case," the moving party can discharge its burden by submitting the evidence developed by the plaintiff during discovery and pointing out that such evidence, even if undisputed, is legally insufficient to permit the plaintiff to meet its burden at trial. Dresher at 293, 662 N.E.2d 264. To this, the plaintiff may then respond and meet its "reciprocal burden" with additional Civ.R. 56 evidence or an argument about why the evidence before the court either entitles it to judgment as a matter of law or creates genuine issues of material fact that must be resolved at trial. Id.

{¶ 28} Mercedes met their initial burden in this case when they came forward with the evidence of McAdams' opinion through her deposition testimony and records she produced in discovery and persuasively argued that this evidence was insufficient proof of her claims as a matter of law. See Mot. for Summ. Jgmt., in passim; McAdams Dep. in passim; Exs. A-G, McAdams Dep. McAdams was free to offer additional evidence or to present arguments about the evidence to successfully demonstrate that she was entitled to judgment as a matter of law or at least to present her case to a jury because of a genuine issue of material fact that only a jury could decide.

{¶ 29} The primary reason McAdams did not meet her reciprocal burden is that she relied almost exclusively on her own opinion that the transmission conductor plate was defective or damaged while the SUV was still within warranty, inadmissible because it was a lay opinion and lacking in the evidentiary quality of an expert opinion necessary for consideration on summary judgment in this case. Tokles & Son, Inc. at 631, fn. 4, 605 N.E.2d 936. And McAdams', in her brief, appears to concede that she is not an expert on automobiles; she admitted as much in her deposition stating, for example, that she had only "limited knowledge of cars," that she had no experience working on vehicles, and had never performed any of her own repairs. (McAdams Brief at 32; McAdams Dep. at 12-13, 144.) Thus, her opinion did not meet standards of admissibility to support her claims as expert opinion evidence.

{¶ 30} We note that admissible lay opinions are "limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Evid.R. 701. For example, a witness to an accident could testify about whether a vehicle sustained visible damage in the accident. Shaw v. Underwood , 10th Dist., 2017-Ohio-845, 85 N.E.3d 1209, ¶ 24-27. A witness who saw a traffic light fall onto a truck could testify that the falling light was caused by a slipping cable grip where the witness saw the cable grip supporting the light slipping and tested the cable grip after the accident to confirm that it slipped when put under stress. Wittensoldner v. Ohio Dept. of Transp. , 10th Dist. No. 13AP-475, 2013-Ohio-5303, 2013 WL 6273297, ¶ 13-14. In contrast, McAdams never directly perceived the condition of the transmission conductor plate, and it is speculative (rather than "rational") to conclude that the acceleration issue in 2011 shared the same cause as the acceleration issue four years later in 2015. See Evid.R. 701(1). Mercedes Easton concluded that the 2011 acceleration issue was caused by interference between the accelerator pedal and the floor mat (as indicated by the sticking pedal) and McAdams testified that the SUV accelerated normally after that was corrected until the incident several years later in 2015. (McAdams Dep. at 27, 30-31, 73-74, 159; Ex. B at 10, McAdams Dep.; Ex. D at 1-2, McAdams Dep.)

{¶ 31} Even as a lay opinion, McAdams' opinion was not sufficiently supported by observation or perception to be reliable as evidence to overcome Mercedes' motion for summary judgment. We hold that the trial court correctly determined as a matter of law that McAdams' opinion was not appropriate Civ.R. 56 evidence for McAdams to have met her reciprocal burden. Tokles & Son, Inc. at 631, fn. 4, 605 N.E.2d 936.

{¶ 32} The trial court also correctly disregarded the service bulletin McAdams referenced in respect to the transmission conductor plate, because it was material from a public site, not a verbatim copy of a Mercedes service bulletin. (Ex. F at 18-19, McAdams Dep.; McAdams Dep. at 159-64.) Regardless of its source, the purported Mercedes service bulletin post-dated both McAdams' purchase of the vehicle and the expiration of her warranty. (Ex. F at 18-19, McAdams Dep.; McAdams Dep. at 16-20, 164-67.) The trial court properly found no genuine issue of fact about whether Mercedes knew of her car's alleged transmission problem either at the time of purchase or when the SUV was still under warranty. Civ.R. 56(C) (focusing the analysis on "material" facts "genuine[ly]" in dispute.).

{¶ 33} The trial court correctly concluded no genuine issues of material fact existed in the summary judgment record and that Mercedes USA and Mercedes Easton were entitled to judgment as a matter of law on McAdams' claims regarding the transmission conductor plate. Because of its decision on res judicata, the trial court did not consider whether the same could be said regarding McAdams' claims about the balance shaft gear. Thus, we remand for consideration of those claims.

{¶ 34} To the extent that Mercedes' brief may be understood to argue that we should apply a similar analysis to consider whether there was a genuine issue of material fact with respect to McAdams' claims on the balance shaft gear within our de novo review, we note that even a de novo review still must be a review of what the trial court did. That is:

[ Civ.R. 56 ] "mandates that the trial court make the initial determination whether to award summary judgment; the trial court's function cannot be replaced by an 'independent' review of an appellate court." Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 360, 1992-Ohio-95, 604 N.E.2d 138 (1992) ; accord Schmucker v. Kurzenberger , 9th Dist. No. 10CA0045, 2011-Ohio-3741 [2011 WL 3273932], ¶ 14 (expressing unwillingness to consider grounds in support of summary judgment on appeal where the trial court has not engaged in a review of the issue in the first instance); Stratford Chase Apts. v. Columbus , 137 Ohio App.3d 29, 33, 738 N.E.2d 20 (10th Dist.2000) (remanding a matter to the trial court for initial consideration of an argument advanced in support of summary judgment).

Cristino v. Admr. , 10th Dist., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 27. In this case, the trial court essentially dismissed McAdams' claims regarding the balance shaft gear without ever considering the Civ.R. 56 evidence or arguments because it found res judicata applied. (Decision & Entry at 4-5.) Hence, were we to undertake an analysis of the balance shaft gear claims under Civ.R. 56, we would, in fact, be the first court to be doing so. As that is inconsistent with Cristino and our role as a reviewing court, we decline to do so.

{¶ 35} McAdams' second assignment of error is overruled.

IV. CONCLUSION

{¶ 36} Mercedes carried its burden to show that the evidence on which McAdams intended to rely with respect to her claims regarding her vehicle's transmission was solely her own inadmissible opinion and was insufficient to create a genuine issue of material fact. McAdams failed to satisfy her reciprocal burden, and, thus, summary judgment on her transmission-related claims was properly granted to Mercedes. We, therefore, overrule McAdams' second assignment of error. Since we find that McAdams did successfully opt-out of a class action that would otherwise have made her claims regarding her vehicle's balance shaft gear res judicata, we sustain her first assignment of error. The grant of summary judgment is reversed insofar as it relates to McAdams' balance shaft gear claims. This matter is affirmed in part, reversed in part, and remanded to the Franklin County Court of Common Pleas for further proceedings consistent with this decision.

Judgment affirmed in part, reversed in part, and cause remanded.

TYACK and HORTON, JJ., concur.

      McAdams originally purchased the ML350 from an out-of-state dealer which is not a party to this lawsuit. (McAdams Dep. at 16-17.)