2006 Ohio 4560 | Ohio Ct. App. | 2006
{¶ 2} The relevant facts from the pleadings are as follows: On June 25, 2005, appellant purchased tickets at appellee's theater. In doing so, he used a credit card. The expiration date of appellant's credit card was printed on the receipt appellee provided. Appellant subsequently wrote a letter to appellee stating that it was unlawful to print the expiration date of a credit card on the receipt of an electronic transaction and demanding payment of $200. After writing the letter, appellant attended appellee's theater on two more occasions. On both occasions, July 16, 2005, and July 23, 2005, the expiration date of appellant's credit card was again printed on his receipt. Appellant then obtained counsel, who began negotiating with appellee to resolve the matter.
{¶ 3} On August 15, 2005, the parties orally agreed to a settlement of $2,525. One condition of the settlement was that appellee forward the $2,525 payment to appellant's counsel by August 22. On August 19, appellant's counsel forwarded a signed settlement agreement to counsel for appellee. On August 22, counsel for appellee received a signed settlement agreement from appellant's counsel. On August 24, appellee's counsel returned the settlement agreement, which was signed by appellee's representative, to counsel for appellant, along with a settlement check.
{¶ 4} Because he did not receive the settlement check by August 22 pursuant to the oral agreement reached on August 15, counsel for appellant declared a breach of the agreement and made a new settlement demand of $5,050. Counsel for appellee rejected the new settlement demand and informed counsel for appellant that he intended to pursue counterclaims under RICO and R.C.
{¶ 5} On August 31, 2006, appellant filed a complaint alleging that on three separate occasions appellee violated R.C.
{¶ 6} The trial court found, as a matter of law, that R.C.
{¶ 7} With respect to the remaining claims, the trial court found, as a matter of law, that a claim under the CSPA requires a consumer transaction, and that interactions between attorneys are specifically excluded from the definition of a consumer transaction. Accordingly, as the remaining claims were based solely upon conduct between the attorneys for the parties, the trial court granted judgment on them in favor of appellee as well.
{¶ 8} An appeal to this court followed, in which appellant raises four assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} "THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN GRANTING APPELLEE'S MOTION TO DISMISS APPELLANT'S FIRST THREE CAUSES OF ACTION."
{¶ 11} Assignment of Error No. 2:
{¶ 12} "THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN OVERRULING APPELLANT'S MOTION FOR SUMMARY JUDGMENT AS TO HIS FIRST, SECOND, AND THIRD CAUSES OF ACTION."
{¶ 13} In his first assignment of error, appellant contends the trial court erred in dismissing claims one through three in his complaint because actual injury is not required to state a claim for which relief can be granted under R.C.
{¶ 14} In order to dismiss a complaint for failure to state a claim upon which relief may be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. A court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party." Estateof Ridley v. Hamilton Cty. Bd. of Mental Retardation Developmental Disabilities,
{¶ 15} At the outset, we note that neither side disputes the requisite standard of review for summary judgment or for a motion to dismiss. We also note that the resolution of the issues raised in appellant's first and second assignments of error involve a matter of law. Therefore, we will dispense with an extended discussion of the applicable standards and apply them as appropriate.1 See Civ.R. 56; Civ.R. 12(B)(6) and (C);Towne v. Progressive Ins. Co., Butler App. No. CA2005-02-031,
{¶ 16} Appellant's claims are based, in part, upon R.C.
{¶ 17} "(A) No person or limited liability company that accepts credit cards for the transaction of business shall print more than the last five digits of the credit card account number, or print the expiration date of a credit card, on any receipt provided to the cardholder.
{¶ 18} "* * *
{¶ 19} "(C) A violation of this section is deemed an unfair or deceptive act or practice in violation of section
{¶ 20} In relevant part, R.C.
{¶ 21} "(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."
{¶ 22} In relevant part, R.C.
{¶ 23} "For a violation of Chapter 1345 of the Revised Code, a consumer has a cause of action and is entitled to relief as follows:
{¶ 24} "(A) Where the violation was an act prohibited by section
{¶ 25} "(B) Where the violation was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B) (2) of section
{¶ 26} "* * *
{¶ 27} "(D) Any consumer may seek a declaratory judgment, an injunction, or other appropriate relief against an act or practice that violates this chapter.
{¶ 28} "(E) When a consumer commences an individual action for a declaratory judgment or an injunction or a class action under this section, the clerk of court shall immediately mail a copy of the complaint to the attorney general. Upon timely application, the attorney general may be permitted to intervene in any private action or appeal pending under this section. When a judgment under this section becomes final, the clerk of court shall mail a copy of the judgment including supporting opinions to the attorney general for inclusion in the public file maintained under division (A)(3) of section
{¶ 29} "(F) The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed, if either of the following apply:
{¶ 30} "(1) The consumer complaining of the act or practice that violated this chapter has brought or maintained an action that is groundless, and the consumer filed or maintained the action in bad faith;
{¶ 31} "(2) The supplier has knowingly committed an act or practice that violates this chapter."
{¶ 32} Appellant contends that whether or not a consumer sustains any actual injury, the forgoing statutory provisions create a private cause of action anytime a "person or limited liability company that accepts credit cards for the transaction of business * * * print[s] the expiration date of a credit card on any receipt provided to the cardholder." R.C.
{¶ 33} Addressing appellant's contention requires us to engage in statutory construction. We must discern the intent of the Ohio General Assembly in enacting the CSPA in general, and R.C.
{¶ 35} The Ohio Supreme Court declared in Gulf Oil Corp. v.Kosydar (1975),
{¶ 36} In interpreting a statute, words and phrases shall be read in context and construed according to the rules of grammar and common usage. Indep. Ins. Agents of Ohio, Inc. v. Fabe
(1992),
{¶ 37} Furthermore, the Ohio Supreme Court has held that statutes relating to the same general subject matter must be read in pari materia. Johnson's Markets, Inc., v. New CarlisleDepartment of Health (1991),
{¶ 38} Finally, "[i]f a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail." R.C.
{¶ 40} Pursuant to R.C.
{¶ 41} Additionally, the CSPA provides the Ohio Attorney General with specific powers and duties. R.C.
{¶ 42} The Attorney General also has the power to investigate acts and practices that have come to his or her attention, and there are a number of remedies available to the Attorney General to correct a violation, if he or she believes that the remedy would be in the public interest. R.C.
{¶ 43} The CSPA also provides for the right of a consumer to proceed as a private attorney general. Eagle v. Fred MartinMotor Co. (2004),
{¶ 44} Finally, a court may award reasonable attorney fees for work performed if the supplier is deemed to have knowingly committed an act or practice that violates the CSPA. R.C.
{¶ 47} Appellant argues that appellees' conduct constituted acts determined by an Ohio court to be a violation of R.C.
{¶ 48} Appellant also relies on Stromp v. Fifth Third Bank (May 30, 2006), Deleware M.C. No. 06CVE00278, and Burdge v.Kandassubs, Inc. (Apr. 28, 2006), Butler C.P. No. 2005-11-3562, to support his contention that statutory damages are available to a consumer whether or not he has suffered actual damages.
{¶ 49} In Stromp, the plaintiffs, relying on Kimmel,
alleged that defendant Brewster Lane, Inc. ("Brewster"), dba "The Wedgewood Pub Grill," violated R.C.
{¶ 50} In Kandassubs, the same trial court that granted judgment against appellant in this case granted a default judgment in favor of appellant, awarding him $200 in statutory damages, and declaratory and injunctive relief.
{¶ 51} Finally, appellant relies on a Columbus television news broadcast in which the Deputy Attorney General in charge of the Consumer Protection Division of the Attorney General's office stated that a consumer may recover either actual damages or statutory damages for a violation of R.C.
{¶ 52} Conversely, appellee contends that appellant's position is flawed because it fails to properly take into account R.C.
{¶ 53} In further support of its position, appellee submits that other Ohio courts have recently concluded that R.C.
{¶ 54} To begin, R.C.
{¶ 55} In general, actual injury is not a necessary prerequisite to recovery under the CSPA. See e.g. Crye; R.C.
{¶ 56} R.C.
{¶ 57} As noted above, R.C.
{¶ 58} We also find appellant's reliance on the damages scheme in R.C.
{¶ 59} Finally, as noted above, courts must keep in mind that a strong presumption exists against any statutory construction that produces unreasonable or absurd consequences. R.C.
{¶ 60} Appellant's first and second assignments of error are overruled.
{¶ 61} Assignment of Error No. 3:
{¶ 62} "THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN GRANTING APPELLEE'S MOTION TO DISMISS APPELLANT'S FOURTH CAUSE OF ACTION."
{¶ 63} Assignment of Error No. 4:
{¶ 64} "THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN GRANTING APPELLEE'S MOTION TO DISMISS APPELLANT'S FIFTH CAUSE OF ACTION."
{¶ 65} In his third assignment of error, appellant contends the trial court erred in dismissing the fourth cause of action in his complaint, which alleges that appellee violated R.C.
{¶ 66} A claim under the CSPA requires a consumer transaction. R.C.
{¶ 67} Appellant's third and fourth assignments of error are overruled.
{¶ 68} Judgment affirmed.
Powell, P.J., and Bressler, J., concur.