2006 Ohio 1240 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 3} Appellee filed a motion to dismiss the complaint, pursuant to Civ.R. 12(B)(6), on March 14, 2005. Appellant filed his brief in opposition on March 24, 2005. On May 20, 2005, the trial court sustained appellee's motion to dismiss and issued its judgment entry and opinion, which was journalized on May 24, 2005. On May 31, 2005, appellee filed a motion for clarification. The trial court granted the motion and issued a nunc pro tunc order, which was journalized on June 7, 2005.
{¶ 4} Appellant filed a timely notice of appeal on May 27, 2005. On June 22, 2005, appellant filed an amended notice of appeal, instanter. This court granted said motion on June 23, 2005. Appellant filed an amended notice of appeal on June 23, 2005.
{¶ 5} According to the facts, in late August 1998, appellant received, as a birthday gift, a fifteen dollar Blockbuster gift card (gift card number 1) in a sealed Blockbuster package. Shortly after receiving the gift card, appellant misplaced it. On or about September 15, 2004, appellant found the misplaced gift card, opened the sealed package and removed the fifteen dollar gift card enclosed therein. The verbiage on the card stated that the card "expires December 31, 2000." There was no expiration date printed on the sealed package.
{¶ 6} In late August 2001, appellant received a ten dollar Blockbuster gift card (gift card number 2) as a birthday gift. This gift card was affixed to a gift card hangtag. The verbiage on the hangtag stated the following: "After 24 months of non-use of this gift card, a monthly service fee of $2 will be charged per month against any remaining positive balance on the gift card commencing on or about the first day of the 25th month, until the gift card balance is zero." The hangtag for gift card number 2 also stated: "Your use of the Blockbuster gift card constitutes your acceptance of these terms." Shortly after receiving the gift card, appellant misplaced the card and never used it. On or about September 15, 2004, appellant found the ten dollar gift card that had been misplaced; however, the card was now without value.
{¶ 7} In late August 2000, appellant receive a twenty dollar Blockbuster gift card (gift card number 3) in a sealed Blockbuster package. The gift card was misplaced prior to any use by appellant. On or about September 15, 2004, appellant found this misplaced card, gift card number 3. On the back of gift card number 3, which was inside a sealed package, was the verbiage "expires Dec. 31, 2002." The verbiage contained on the back of the gift card could not be read without removing the gift card from the sealed package. The verbiage on the package did not state that there was any expiration date for the gift card contained therein.
{¶ 8} Because of the expiration date, December 31, 2002, gift card number 3 had no store value to appellant. In September 2004, an employee of the Richmond Heights Blockbuster store informed appellant that his three gift cards had no value.
{¶ 10} Appellant's second assignment of error states the following: "The trial court erred to the prejudice of the appellant and abused its discretion by finding that the facts, as set forth in appellant's complaint, failed to state a claim that appellee violated R.C. §
{¶ 11} Appellant's third assignment of error states the following: "The trial court erred to the prejudice of the appellant and abused its discretion by finding that the facts, as set forth in appellant's complaint, failed to state a claim that appellee's course of conduct against the appellant constituted fraudulent concealment."
{¶ 12} Appellant's fourth assignment of error states the following: "The trial court erred to the prejudice of the appellant and abused its discretion by dismissing his complaint under Civ.R. 12(B)(6) without addressing whether said complaint set forth facts that would entitle him to relief for either breach of implied covenant of good faith and fair dealing or unjust enrichment."
{¶ 14} The standard of review for such matters is to determine whether the trial court abused its discretion in reaching its judgment. Absent a clear abuse of that discretion, the lower court's decision should not be reversed. Mobberly v.Hendricks (1994),
"An abuse of discretion involves far more than a difference inopinion. The term discretion itself involves the idea of choice,of an exercise of will, of a determination made between competingconsiderations. In order to have an `abuse' in reaching suchdetermination, the result must be so palpably and grosslyviolative of fact and logic that it evidences not the exercise ofwill but the perversity of will, not the exercise of judgment butdefiance thereof, not the exercise of reason but rather ofpassion or bias."
Id. at 845-846, quoting Huffman v. Hair Surgeons, Inc.
(1985),
{¶ 15} An abuse of discretion implies more than an error of law or judgment. Rather, abuse of discretion suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. In re Jane Doe 1 (1991),
{¶ 16} R.C. Chapter 1345, the Ohio Consumer Sales Practices Act ("OCSPA"), sets forth the standards of conduct for the supplier of consumer goods. R.C.
{¶ 17} R.C.
{¶ 18} R.C.
{¶ 19} Appellant is not a consumer as defined by the OCSPA. Appellant received all three gift cards as gifts for various birthdays. As previously mentioned, R.C.
{¶ 20} Appellant's first assignment of error is overruled.
{¶ 21} Chapter 4165 governs deceptive trade practices; more specifically, R.C.
{¶ 22} "§
"* * *
"(7) Represents that goods or services have sponsorship,approval, characteristics, ingredients, uses, benefits, orquantities that they do not have or that a person has asponsorship, approval, status, affiliation, or connection thatthe person does not have;
"* * *
"(9) Represents that goods or services are of a particularstandard, quality, or grade, or that goods are of a particularstyle or model, if they are of another;
"* * *."
{¶ 23} The Ohio Deceptive Trade Practices Act is substantially similar to the federal Lanham Act, and it generally regulates trademarks, unfair competition, and false advertising.Yocono's Restaurant, Inc. v. Yocono (1994),
{¶ 24} At least half of the circuits hold (and none of the others disagree) that § 45 of the Lanham Act,
{¶ 25} We agree with the lower court's May 2005 journal entry in which the trial court stated that plaintiff was not a consumer, much less a commercial entity. We find no abuse of discretion on the part of the lower court regarding appellant's R.C.
{¶ 26} Accordingly, appellant's second assignment of error is overruled.
{¶ 27} Appellant has not produced any evidence to support his claims of fraudulent concealment. The elements of fraudulent concealment include (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 caused by the reliance. Cohen v. Lamko,Inc. (1984),
{¶ 28} Not every nondisclosure rises to the level of fraud. In order to establish fraud for nondisclosure, the purchaser must show an affirmative misrepresentation or misstatement of material fact. Layman v. Binns (1988),
{¶ 29} Appellant's fraud claim was based on an alleged nondisclosure of the expiration date, "concealed" on the gift card, inside the packaging. We do not find this argument to be persuasive. It is reasonable to expect a customer to open store packaging and read the terms on a gift card within a few weeks of receiving the gift. Appellant neglected to do so.
{¶ 30} Appellant failed to allege a number of the elements required, the failure of any one of which requires dismissal. Appellant did not allege that Blockbuster made false statements regarding the nature of the gift cards. In fact, the information concerning the expiration date on the 1998 and 2000 cards was not false or misleading.
{¶ 31} Moreover, appellant failed to allege that he reasonably believed there was no expiration date and, in reliance on that belief, intentionally refrained from using the gift cards until September 2004. Appellant merely lost the cards. In other words, even if Blockbuster had printed the expiration date on the exterior package of the 1998 and 2000 cards, as appellant alleged it should have, the result would be the same. Appellant still would have lost the gift cards and not found them until September 2004.
{¶ 32} The trial court recognized this when it noted that even if appellant met the other elements of the fraud claim, "plaintiff's alleged injuries are not proximately caused by the defendant's actions," his own negligence proximately caused his injury and thus is fatal to his fraud claim.3 SeeHyosung (Am.), Inc. v. Star Bank, Cuyahoga App. Nos. 81586, 81912, 2003-Ohio 4563, at ¶ 31-35.
{¶ 33} Appellant's third assignment of error is overruled.
{¶ 34} We do not find merit in appellant's fourth assignment of error. Appellant's complaint failed to allege a breach of contract, a requirement for an alleged breach of the implied covenant of good faith and fair dealing.
{¶ 35} Parties to a contract are bound toward one another by standards of good faith and fair dealing. However, this does not stand for the proposition that breach of good faith exists as a separate claim. Instead, good faith is part of a contract claim and does not stand alone. Wauseon Plaza, Ltd. Partnership v.Wauseon Hardware Co.,
{¶ 36} Even though the Blockbuster gift card expired, Blockbuster did not create the situation. Appellant, through no fault of appellee, lost his gift cards. While it may constitute good business sense, fair-minded customer service and virtuous ethics, it is not a contractual obligation for Blockbuster to redeem the expired gift cards. Although it may be illaudable, Blockbuster is allowed to advance its own interests, and not legally required to put the interests of its customer first.
{¶ 37} Unjust enrichment requires that the party asserting the claim demonstrate that "the claimant conferred a benefit upon the recipient." Struna v. Convenient Food Mart,
{¶ 38} The evidence in the record demonstrates that Blockbuster acted in good faith and performed its obligations under the terms of the gift cards. We find no abuse of discretion concerning a breach of implied covenant of good faith and fair dealing or unjust enrichment.
{¶ 39} Appellant's fourth assignment of error is overruled.
{¶ 40} The lower court's decision is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Dyke, A.J., concurs in judgment only; Blackmon, J., concurs in part and dissents in part. (seeseparate concurring and dissenting opinion.)
(A) `Consumer transaction' means a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things.' * * *
(B) `Person' includes an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, cooperative, or other legal entity. * * *
(D) `Consumer' means a person who engages in a consumer transaction with a supplier. * * *.
(D) `Person' means an individual, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, limited liability company, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity. * * *"
Dissenting Opinion
I concur in the final outcome of the majority opinion, but write separately because I believe the appellant has standing as a consumer to bring this action under the Ohio Consumer Sales Practices Act, R.C.
The trial court compared gift cards to the television purchase in Oliver v. Thomson Consumer Elecs. (Dec. 16, 1998), 9th Dist. No. 97CA006948. In Oliver, the appellant received a television as a gift from his father. Problems with the television surfaced immediately. The appellant attempted to have the problem corrected with both the retailer and manufacturer to no avail. The appellant, therefore, filed suit against the manufacturer and retailer for misrepresentation, fraud, and breach of warranty in violation of the Ohio Consumer Sales Practices Act. The court concluded that the trial court properly dismissed the appellant's consumer claims because since the father purchased the television, the appellant did not engage in a consumer transaction.
I conclude that Oliver is distinguishable from the instant case. When a person receives a television as a gift, there is no further negotiation on the part of the recipient. However, gift cards require the recipient to use the card to select a product or service. In fact, during oral argument, counsel acknowledged that the gift cards were intended to be used in commerce. Therefore, I believe upon receiving and using the gift card, the recipient of the card is a consumer.
The reality of this case is that the placement of expiration dates on gift cards is unconscionable. The vendor receives the money when the gift card is purchased. Therefore, requiring the recipient to use the card within a specific time only serves the purpose of allowing the vendor to pocket the money without having to provide a product or service in exchange.
However, although I conclude appellant is a consumer and the expiration dates are unconscionable, Ohio currently does not have a law prohibiting expiration dates on gift cards. Consequently, I concur with the outcome of this case and conclude the appellant has failed to establish a successful claim.