C.A. No. 20744. | Ohio Ct. App. | Apr 10, 2002
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Plaintiff-Appellant Phyllis M. Bellinger has appealed from an order of the Summit County Court of Common Pleas that dismissed her complaint against Defendant-Appellee Hewlett-Packard Co. ("HP") for failure to state a claim upon which relief can be granted. This Court affirms.
With each inkjet printer it sells, HP includes one black and one color ink cartridge. Beginning in 1998, HP began including with certain of its low-end inkjet printers what it has called "economy" cartridges. The distinguishing feature of these economy cartridges is that they contain approximately one-half the volume of ink as HP's "large" replacement cartridges.
The ink cartridges that HP provided with its printers did not come installed in the hardware, but were included in self-contained packages inside the printer boxes. The packaging containing the cartridges described their contents as economy cartridges. The outside of the printer box, however, as well as HP's marketing and promotional materials, stated only that ink cartridges were included; they did not describe the ink cartridges as economy cartridges.
In December 1999, Appellant purchased a HP inkjet printer which included an economy ink cartridge. Appellant thereafter filed a complaint against HP seeking certification of a statewide class consisting of purchasers of HP products which included the economy ink cartridges. Appellant's complaint asserted causes of action based on fraud, violations of the Consumer Sales Practices Act (R.C.
The trial court erred in granting [HP's] motion to dismiss, including, but not limited to, in:
A. Finding that HP made no affirmative misrepresentation regarding the amount of ink in its print cartridges included with its low-end printers.
B. Finding that an affirmative misrepresentation is necessary for a violation of the CSPA.
C. Finding that [Appellant] failed to set forth a claim under the consumer sales protection act.
D. Finding that [Appellant] failed to plead her fraud claim with sufficient particularity.
This Court reviews an entry of dismissal under Civ.R. 12(B)(6) denovo. Hunt v. Marksman Prod., Div. of S/R Industries, Inc. (1995),
(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.
(B) Without limiting the scope of division (A) of this section, the act or practice of a supplier in representing any of the following is deceptive:
(1) That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have;
(2) That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model if it is not;
* * *
(6) That the subject of a consumer transaction will be supplied in greater quantity than the supplier intends[.]
Appellant's complaint also alleged that HP violated R.C.
(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.
HP has argued that Ohio law requires an affirmative representation of some inaccurate or false information in order for a claim to be actionable under the CSPA. See Lintermoot v. Brown (Aug. 2, 1988), Van Wert App. No. 15-86-25, unreported, 1988 Ohio App. LEXIS 3065. Appellant, on the other hand, has contended that a knowing failure to disclose material information can constitute a deceptive act or practice under the CSPA. See Swiger v. Terminix Int'l Co. L.P. (June 28, 1995), Montgomery App. No. 14523, unreported, 1995 Ohio App. LEXIS 2826. This Court declines to hold, as HP has urged, that a failure to disclose information in the absence of an affirmative representation that is false or inaccurate can never give rise to an actionable claim under the CSPA. Even accepting all the factual allegations in Appellant's complaint as true, however, we conclude that neither the affirmative representations nor any unstated implications made by HP with respect to its ink cartridges support a claim that HP engaged in deceptive or unconscionable acts or practices under R.C.
It is undisputed that the outside of the printer box and the promotional and advertisement materials disseminated by HP represented that printers of the type purchased by Appellant included ink cartridges, and that ink cartridges were in fact included with the printers. Appellant's complaint, however, alleges that HP's failure to describe the ink cartridges included with its printers as "one-half full," "starter cartridges," or "economy cartridges" was a deceptive and unconscionable practice under the CSPA. The gravamen of Appellant's allegations is that HP's statement that ink cartridges were included with its printers constitutes a half-truth — that is, a statement true on its face that nevertheless implies in the mind of the prospective purchaser a belief that is not in accord with the facts. See, e.g., Stateex rel. Brown v. Bredenbeck (C.P. 1975), 2 O.O.3d 286, 287. Specifically, Appellant's complaint alleges that HP's representation that its printers included ink cartridges implied in the mind of the consumer that the ink cartridge would be a large — what Appellant has called a "full" — cartridge.
Appellant has consistently described the ink cartridges provided by HP as "half-full," which is accurate inasmuch as the economy cartridge contained approximately one-half the quantity of ink as the large cartridge. The "half-full" description, however, falls short of establishing that the statement "ink cartridge included" implies in the mind of the consumer a belief that is not in accord with the facts. If the statement "ink cartridge included" implied in the mind of the consumer that a full ink cartridge must be included, the amount of ink would only be important as a measure of how "empty" of ink the cartridge was.1 Whether HP's representation that ink cartridges were included with its printers is deceptive or unconscionable, however, cannot depend upon a measure of the unfilled volume of the cartridge, irrespective of the quantity of ink it contains.
Appellant has also phrased HP's allegedly deceptive conduct as "misleading" consumers into believing that "the cartridges had the standard amount of ink." Appellant's complaint, however, has failed to allege any basis for the conclusion that "ink cartridge" implies in the mind of the consumer a "standard amount" of ink, or to identify what quantity of ink constitutes a "standard amount."2
Appellant has also argued that HP's representation that its printers included ink cartridges implied that the cartridges would be the large, rather than the economy, cartridges sold by HP as replacements. Again, however, Appellant has failed to allege any basis for her contention that consumers were somehow entitled to large rather than economy cartridges, when both sizes were marketed and sold by HP as replacement cartridges for its printers. The mere fact that HP once included large cartridges in all its printers cannot reasonably be interpreted by Appellant to mean that HP's later inclusion of economy cartridges with its inexpensive line of printers is deceptive or unconscionable.
Appellant has also argued that HP's use of the word "economy" to describe the cartridges with the lesser amount of ink constitutes a deceptive or unconscionable practice. The crux of Appellant's objection to HP's use of the word "economy" is that products labeled "economy" are understood to provide more volume per dollar than "standard" or "large" products, whereas HP's economy cartridges provide less ink than its large cartridges. Appellant relies upon a Federal Trade Commission ("FTC") regulation,
Finally, Appellant has devoted a significant portion of her brief to her argument that the CSPA claims in her complaint meet the statutory requirements to proceed as a class action. The trial court, however, found that Appellant's failure to state a CSPA claim upon which relief can be granted as an individual rendered unnecessary any consideration of whether Appellant's claims are properly maintainable as a class action. Accordingly, the class action question is not properly before, and will not be addressed by, this Court.
Even accepting all the factual allegations in Appellant's complaint as true and drawing every reasonable inference in favor of Appellant, this Court concludes that Appellant's complaint fails to state a claim upon which relief can be granted pursuant to R.C.
In order to maintain an actionable claim for fraud, a plaintiff must establish the following elements:
(a) a representation or, where there is a duty to disclose, concealment of a fact,
(b) which is material to the transaction at hand,
(c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,
(d) with the intent of misleading another into relying upon it,
(e) justifiable reliance upon the representation or concealment, and
(f) a resulting injury proximately caused by the reliance.
Burr v. Stark Cty. Bd. of Commrs. (1986),
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
Civ.R. 9(B). The requirements of Civ.R. 9(B) are satisfied if the plaintiff's complaint specifies "(1) [the] specific statements claimed to be false; (2) the time and place the statements were made; and (3) which defendant made the false statements." Pollock v. Kanter (1990),
In the instant case, Appellant has failed to identify any false or fraudulent representation made by HP. The only representation that Appellant's complaint alleges that HP made was that ink cartridges were included with its printers. This representation, however, was not false; it was true.
Nor can "concealment of a fact" form the basis of Appellant's fraud claim, because Appellant does not allege any cognizable duty on the part of HP to disclose any facts about its ink cartridges. See Fed. Mgt. Co.v. Coopers Lybrand (2000),
Finally, HP's unqualified representation that "ink cartridges are included" cannot itself be construed as imposing upon HP a duty to further describe the cartridges as economy cartridges, because HP's representation was not a half-truth. As discussed supra, HP's representation that ink cartridges are included is not rendered untrue or misleading by HP's omission of the fact that the ink cartridges included were economy cartridges.
Even accepting all the factual allegations in Appellant's complaint as true and drawing every reasonable inference in favor of Appellant, therefore, Appellant's complaint fails to state a claim for fraud upon which relief can be granted. The trial court properly dismissed Appellant's claim for fraud for failure to plead with sufficient particularity any false or fraudulent representations made by HP.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
BAIRD, P.J., BATCHELDER, J. CONCUR.