I must respectfully dissent. The pertinent issue in this case is whether the limited express warranty failed in its essential purpose. As stated in Goddard v. General Motors Corp. (1979),60 Ohio St.2d 41, 45, 14 O.O. 3d 203, 205-206, 396 N.E.2d 761, 764:
"Although in most cases a limited remedy may be fair and reasonable, and satisfy the reasonable expectations of a new car purchaser, other courts and some commentators have generally recognized that when a seller is unable to fulfill its warrantedobligation to effectively repair or replace defects in goods which are the subject matter of the sale, such as in the instant cause, the buyer is deprived of the benefits of the limited remedy and it therefore fails its essential purpose." (Emphasis added.)
In the case sub judice, the plaintiff-appellant has failed to make a prima facie showing that the defendants-appellees were unable or unwilling to fulfill their warranty obligations. The record demonstrates that the requested repairs were performed. The mere fact that certain repairs remained unperformed cannot in any way lead to the conclusion that they could not or would not be done by appellees.
Appellant correctly asserts, "Ohio case law indicates that where a seller is unable to cure a defect in the buyer's automobile the express warranty and its disclaimer * * * failed their essential purpose and therefore are void within the meaning of Section 1302.15 of the Ohio Revised Code," citing Eckstein v.Cummins (1974), 41 Ohio App.2d 1, 70 O.O. 2d 10,321 N.E.2d 897. The record illustrates, however, that appellant did not give appellees the opportunity to commence or complete the alleged repairs that remained. Although the transcript details each of the items complained of by the appellant and what was done to her satisfaction, the most compelling statement by the appellant reads as follows:
"Q. Miss Nearhouse, before we broke for lunch, I believe I was completing my questions about the repairs that had been made to the vehicle.
"Let me start off the afternoon session by asking you, with the exception of the items that your counsel put *Page 47 on the board, the repairs that were made to your satisfaction and did not have to be made a second time, is that correct?
"A. With the exception of the antenna, the paint, the moldings and the sunroof motor, yes, that is correct.
"Q. And on each of those occasions you believed that you had gotten what you bargained for in terms of a repair or replacement of a specific part, isn't that correct?
"A. Of certain parts, yes. My car in general, no.
"* * *
"Q. As it relates to those items that you added to your answer, Ms. Nearhouse, those being the antenna, sunroof, the paint and the moldings, am I correct that you have not taken the car back to Westside Volkswagen or otherwise given Volkswagen an opportunity to cure these defects; is that correct?
"A. That is correct."
Can it thus be said that the express limited warranty failed in its essential purpose? The answer is an obvious no. Appellant, by her failure to give appellees further opportunity to cure the alleged defects, can not now maintain that appellees were unable to fulfill their warranty obligations. In so finding, it is unnecessary to proceed to a theory of breach of implied warranty of merchantability inasmuch as this remedy is precluded. Goddard,supra. It is only when the express limited warranty fails in its essential purpose that a buyer may resort to other remedies. R.C.1302.93.
It is apparent from the record that this case was not one of "revocation of acceptance." Had it been, perhaps the appellant's statement that, as to her car in general, she did not feel she had gotten what she bargained for would have had some legal effect. However, the mere failure to meet the "buyer's expectations" (R.C. 1302.66[A]) does not trigger the remedy of revocation of acceptance when the buyer has not sought the same. Moreover, R.C. 1302.65 provides in part:
"(B) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of non-conformitycannot be revoked because of it unless the acceptance was on the reasonable assumption that the non-conformity would be seasonably cured * * *." (Emphasis added.)
Although the majority has cited the test to determine when a limited warranty fails in its essential purpose, it has given no effect to the stated authority that the seller must be unable orunwilling to fulfill its warranted obligation. If the majority instead relies solely on the syllabus of Goddard, supra, wherein the words "but the new car is so riddled with defects that the limited remedy of repair and replacement fails its essential purpose * * *" (emphasis added), then a reading of the cases relied upon for such holding is necessary. In each of those cases, it was reiterated that the seller was either unable orunwilling to perform the repairs. Clark v. InternationalHarvester Co. (1978), 99 Idaho 326, 581 P.2d 784; Riley v. FordMotor Co. (C.A. 5, 1971), 442 F.2d 670; Murray v. HolidayRambler, Inc. (1978), 83 Wis.2d 406, 265 N.W.2d 513.
In McCullough v. Bill Swad Chrysler-Plymouth, Inc. (1983),5 Ohio St.3d 181, 186, 5 OBR 398, 403, 449 N.E.2d 1289, 1294, relied upon by appellant, even though that case dealt with revocation of acceptance, it is stated that:
"It is beyond reasonable dispute that the warranties furnished appellee failed of their essential purpose. The automobile was severely flawed, and appellant proved incapable of curing its defects." (Emphasis added.)
Appellant also urges this court to *Page 48 adopt a "downtime" theory to support her claim that the limited express warranty failed in its essential purpose. Although this may be the law of other states, it is not yet the law in Ohio and this court cannot legislate. The legislature has enacted R.C.1345.73, effective October 22, 1987. This section, however, creates a presumption only in regard to downtime of thirty days or more. R.C. 1345.73 does not apply to the instant cause inasmuch as it was not in effect at the time of the trial herein.
It is this writer's opinion, therefore, that unless there has been a prima facie showing that the appellees were either unwilling or unable to remedy the alleged defects within a reasonable time after the complaints were made by appellant, a breach of limited express warranty has not been demonstrated and the warranty has, therefore, not failed in its essential purpose so as to permit recovery on implied warranty or revocation of acceptance and the damages consequent thereto.
As to the final assignment of error, in view of the above reasoning, I find this error harmless and I would, therefore, affirm the trial court's decision on the motion for directed verdict.