735 N.E.2d 483 | Ohio Ct. App. | 1999
Judgment Appealed From Is: Affirmed in Part, Reversed in Part and Cause Remanded. *690 OPINION.
Plaintiff-appellant, Ellen Ganson, appeals from the judgment of the trial court finding in favor of defendant-appellee Kimberly Vaughn on Ganson's claims of breach of contract and violations of Ohio's Uniform Commercial Code and Consumer Sales Practices Act. The case was tried before a magistrate, who found in favor of Vaughn, and the trial court adopted the findings of the magistrate over Ganson's objections.
Ganson contracted to buy from Vaughn two cranial prostheses, which are replacement hair pieces similar to wigs. Ganson had been diagnosed with breast cancer and knew that the treatments for her cancer would cause her to lose her hair. Thus, she contacted Vaughn before the treatments so that Vaughn could have the prostheses ready when Ganson lost her hair. The prostheses were alleged to be superior to "off-the-rack" wigs because each would be custom-fit to the client's head and would duplicate the client's hair style.
Ganson gave Vaughn a $200 deposit on the items and paid the remainder of the cost, approximately $1200, at a later date. The contract for the purchase of the prostheses stated that because each prosthesis was custom-fit to the client's head, no refunds could be given.
When the prostheses were ready, Ganson visited Vaughn for a fitting. Because Ganson had not lost all of her hair by that time, Vaughn told Ganson that future fittings would be necessary. However, Ganson never returned to Vaughn for further fittings.
According to Ganson, the prostheses were useless to her because they did not fit properly and were poorly constructed. Ganson's scalp showed through the prostheses in some places, and the hair was not evenly woven across the scalp cap. However, Ganson did not return the prostheses to Vaughn for fitting or further work. Instead, she took her prostheses to her regular hair stylist, who attempted to trim the hair pieces. The result was that the pieces were in worse condition than they were when Ganson received them from Vaughn.
Ganson, who was ill from treatment, instructed her sister to return the hair pieces to Vaughn and obtain a refund. When Vaughn spoke to the sister, she informed the sister that the pieces simply needed further adjustment, as Ganson had been told when she picked up the prostheses, and that, as the contract stated, no refunds were to be given due to the custom nature of the pieces. Vaughn requested that Ganson return to the store with the prostheses for further fitting. Ganson never returned, but instead sued Vaughn, as stated above, for breach of contract, and for violations of Ohio's Uniform Commercial Code ("UCC") and Consumer Sales Practices Act ("CSPA"). *692
Following the hearing before the magistrate, the magistrate recommended a judgment in favor of Vaughn. Specifically, the magistrate found no breach of contract and no violation of the UCC because Ganson knew that proper fitting of the prostheses could take more than one visit to Vaughn, but Ganson never returned to Vaughn for fittings after the initial one, which was conducted while Ganson still had her natural hair. The magistrate also found that Vaughn had not engaged in any deceptive practices in violation of the CSPA. The trial court adopted the findings of fact and conclusions of law of the magistrate, over the objections of Ganson.
In her first assignment of error, Ganson claims that the trial court erred in adopting the holding of the magistrate that Ohio Adm. Code
There is no dispute in this case that no such receipt was provided to Ganson when she paid her deposit to Vaughn. The trial court held that no violation of the CSPA had occurred because the administrative code provision does not apply to completed transactions.
We are constrained to hold that the trial court erred in its interpretation of the administrative code provision. The CSPA is a remedial act, and its terms are to be interpreted liberally in favor of the consumer.1 As stated in Renner v.Procter Gamble Co.,2
These substantive rules are liberally construed and applied to promote their purposes and policies, with such purposes and policies being to: (a) define with reasonable specificity acts and practices which violate R.C.
The plain language of Ohio Adm. Code
Other courts addressing this question have also held that, even in cases where the contemplated transaction is complete, consumers are permitted to allege and recover for a violation of the code's requirements regarding deposits.3 A failure to comply with the requirements is a deceptive or unfair act, and further dealings between the parties do not negate the violation.4
The evidence in this case showed that Vaughn had a sign on the wall of her business that stated the store's refund policy, and the policy was also contained in a second written agreement signed by Ganson some time after the initial deposit was made. However, the administrative code specifically states that the receipt for the deposit must contain the information pertaining to refund policy. In Zimmerman v. U.S. Diamond Gold,Inc.,5 the court concluded that a sign on the wall of the business stating the store's refund policy did not satisfy the terms of the administrative code. The language of the administrative code mandates the result reached by the court inZimmerman, and we likewise hold in this case that neither the store sign nor the later contract negated the violation of the administrative code, which occurred upon the acceptance of the deposit without a receipt meeting the requirements of the code. Thus, we sustain Ganson's first assignment of error.
In her second assignment of error, Ganson claims that the trial court erred in adopting the holding of the magistrate that Vaughn's failure to report her use of a fictitious business name with Ohio's Secretary of State was not a violation of the CSPA and did not entitle Ganson to relief. R.C.
R.C. Chapter 1345 comprises the Consumer Sales Practices Act. R.C.
In Crull v. Maple Park Body Shop,7 the court specifically held that the mere failure to report the use of a fictitious name pursuant to R.C.
We find the reasoning of the Crull court to be persuasive. Here, the fictitious name used by Vaughn did not create a subterfuge preventing Ganson from attempting to obtain redress for alleged violations of the CSPA, and Ganson has failed to demonstrate that she was damaged or prejudiced in any way by Vaughn's failure to report the use of the fictitious name to the Secretary of State. Where the failure to report is not listed in either R.C. Chapter 1345 or Ohio Adm. Code Chapter 109:4-3 as an unfair or deceptive act, and where no other deceptive acts are alleged in connection with the use of a fictitious business name, the mere failure to register does not violate the CSPA. Thus, we hold that the trial court did not err in ruling that Vaughn's failure to report the use of a fictitious name to Ohio's Secretary of State was not a deceptive practice for which Ganson was entitled to recover. *695
In her third assignment of error, Ganson argues that the trial court erred in adopting the magistrate's finding that Ganson was not entitled to attorney fees. R.C.
Therefore, the judgment of the trial court is reversed with respect to its holding that the failure to provide a receipt in accordance with Ohio Adm. Code
Judgment affirmed in part and reversed in part, and causeremanded. Gorman and Painter, JJ., concur.
Please Note:
The court has placed of record its own entry in this case on the date of the release of this Opinion.