699 N.E.2d 549 | Ohio Ct. App. | 1997
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *214 The following appeal and cross-appeal arise from a decision of the Cuyahoga County Court of Common Pleas, which awarded plaintiff-appellee and cross-appellant, Stevens Skin Softener ("Stevens"), damages of $68,948.39 after determining that defendant-appellant and cross-appellee, Revco Drug Stores, Inc. ("Revco"), failed to seasonably return skin care products purchased on a sale-orreturn basis from Stevens. For the reasons that follow, we modify the judgment of the trial court and, as modified, affirm.
Between July and November 1994, Revco placed at least seven orders for skin care products from Stevens. It is undisputed that these purchases were on a sale-or-return basis and were placed for retail sale in Revco stores around the United States. At all times relevant to this appeal, Revco made no payments toward these purchases. Of the approximately thirty thousand units of skin care products purchased from Stevens, less than one thousand units were sold. As a result, sometime in early 1995, Revco requested authorization to return the products in stock because of poor resale. While Stevens did authorize the return, it asked that Revco reconsider returning the unsold products. Revco responded that the decision was made to return the products and the process of return had already been initiated.
The first shipments for return were received by Stevens in March 1995. The balance of the merchandise was returned at varying times from April through October 1995. In May 1995, Stevens instituted suit against Revco, claiming that it was owed money on an account for goods received by Revco. Revco denied that any money was owed to Stevens and claimed that the goods had been returned. Stevens moved for partial summary judgment, which was denied.
A one-day bench trial was held on March 18, 1996. In its case-in-chief, Stevens presented evidence of indebtedness totalling $242,758.32. Revco countered with evidence of returns and other miscellaneous credits demonstrating that Stevens owed Revco $5,337.71.1 Stevens acknowledged credits for returns in substantially the same condition totalling $37,449, other miscellaneous credits totalling $28,455.13 *215 and liquidation proceeds in mitigation of its damages totalling $9,165, and requested damages of $167,689.19, plus interest.
Finding that merchandise returned after June 1, 1995 was not seasonably returned, the trial court determined that Revco was obligated to pay for merchandise returned after that date. Revco was given credit for returns totalling $74,840.40 for merchandise returned before June 1, 1995, as well as credits of $28,455.13 and $9,165 as discussed above. The trial court opined that Stevens had failed to produce evidence that some of the returned merchandise was damaged and therefore determined that Stevens was not entitled to damages for that portion of merchandise that allegedly was defective. Consequently, the trial court entered judgment against Revco for $68,948.39.
From this judgment, Revco timely appeals and raises the following errors for our review:
"I. The trial courts finding that merchandise returned after June 1, 1995 was not returned seasonably was against the manifest weight of the evidence.
"II. Even if the trial courts adoption of the June 1, 1995 deadline [was] proper, the trial court miscalculated the damages due to Stevens."
The option to return merchandise under a sale-or-return contract is governed by R.C.
"Under a sale or return unless otherwise agreed:
"(1) the option to return extends to the whole or any commercial unit of the goods while in substantially their original condition, but must be exercised seasonably; and
"(2) the return is at the buyers risk and expense." *216
An action is taken "seasonably" when it is taken at or within a reasonable time. R.C.
While Revco contends that it is Stevens, as the seller, who has the burden of proving whether its merchandise was returned seasonably, we find it unnecessary to make such a determination in order to resolve the issue of seasonableness. Revco's Vice President of Marketing, Bruce Schwallie, testified that Revco received authorization from Stevens in February 1995 to return the unsold merchandise. He further testified that, under normal retail industry practice, sixty to ninety days would be an expedient time within which to expect the returns to be effectuated.
Considering the evidence as to the nature and circumstances of the parties overall business relationship, the trial court had before it competent, credible evidence from which to determine that returns after June 1, 1995 were unseasonable. Accordingly, Revco's sole assignment of error is not well taken.
"I. Whether the trial court improperly overruled cross-appellant Stevens' motion for partial summary judgment.
"II. Whether the trial court's finding that Stevens produced no evidence that returned merchandise was damaged was against the weight of the evidence.
"III. On a sale or return contract under Revised Code Section
"IV. On a `sale or return' contract under R.C.
"V. Whether cross-appellant Stevens was entitled to interest."
In reviewing a motion for summary judgment, an appellate court conducts a de novo review of the trial court's decision. "A court reviewing the granting of a summary judgment must follow the standards set forth in Civ. R. 56 (C) * * *." Aglinsky v.Cleveland Builders Supply Co. (1990),
The court must construe the evidence and all reasonable inferences drawn therefrom in a light most favorable to the party opposing the motion. Morris v. Ohio Cas. Ins. Co. (1988),
In opposing Stevens's motion, Revco disputed the amount Stevens claimed was due and supported its brief with documentary evidence to this effect. Construing the evidence in favor of Revco, as we must, genuine issues of fact remained as to the amount of damages due. Consequently, the trial court did not err in denying Stevens's motion for partial summary judgment. Accordingly, Stevens's first cross-assignment of error is not well taken.
The right to return merchandise under a sale-or-return contract extends to merchandise substantially in its original condition. R.C.
In this case, considerable testimony was elicited supporting the argument that the returned merchandise was not substantially in its original condition. For example, Schwallie testified that Revco affixed price and security tags to an indeterminate number of Stevens's products. He further testified that there was no attempt on Revco's part to remove these tags prior to return. Stevens's personnel attempted to remove these tags, but the adhesive proved too strong for removal.
While we find that sufficient evidence was presented documenting that some of the returned merchandise was not substantially in its original condition, Stevens has failed to prove precisely how many units of the returned merchandise were in such a condition that damages could be accurately calculated.
David Ball, a representative from Stevens, testified as follows when asked when the damaged merchandise was returned:
"It would have been the ones around in April. I can identify — in trying to find specifics, I would have [to] look at some.
"There were two good clean shipments coming back on the pallets and original boxes. That was before I started working for Stevens, in March.
"Then I believe it was in April sometime, or early May, at the time I started. This is when the substantial quantity started coming back. Those were in poor condition."
He further testified that Stevens never counted the units that were returned with price and/or security tags. Without any evidence as to the quantity of damaged merchandise, it would be impossible for the trial court to accurately determine the amount of credit due Stevens. Thus, while the trial court may have incorrectly determined that Stevens produced no evidence of damaged merchandise, it correctly determined that Stevens was not entitled to further credit as a result of unremoved price and/or security tags. Accordingly, Stevens's second cross-assignment of error is not well taken.
It should be noted that Stevens raises this issue for the first time on appeal. Issues not initially raised in the trial court are considered waived and may not be assigned as error on appeal.Rose Hill Chapel-Ciriello Funeral Home v. Ohio Bd. of Embalmers Funeral Dirs. (1995),
Notwithstanding, we find no support for such a tortuous interpretation of R.C.
R.C.
The purchase orders at issue in this case reveal that Revco would be entitled to a two-percent discount if payment was made on or before the forty-fifth day after receipt of the merchandise, and net thereafter. Thus, payment was due and payable to Stevens no later than the forty-sixth day after receipt of the merchandise. No interest rate was stated on the purchase orders. It is undisputed that Revco has failed to make any payment toward these purchase orders.
Despite Revco's failure to make payment when due and payable, Stevens's authorization for Revco to return unsold products complicates an interest calculation. Stevens, in its complaint and in closing argument, merely asked for judgment in its favor, with interest. There was no evidence of how the interest *220 was to be calculated and on what amounts. While Stevens rather unequivocally argues on appeal that interest is due from September 1, 1994, several purchase orders were not due and payable at the time. Reiterating, the fact that multiple returns were made complicates the calculation of the amount of interest due because the multiple purchase orders have varying due dates. It was, therefore, incumbent upon Stevens to produce evidence of how interest was to be calculated. Without such evidence, the trial court did not err in failing to award Stevens prejudgment interest.
Accordingly, Stevens' fifth cross-assignment of error is not well taken.
We therefore modify the judgment of the trial court to reflect a judgment for Stevens against Revco in the amount of $68,918.39 and, as modified, affirm the trial court's decision.
Judgment accordingly.
KARPINSKI, P.J., and PATTON, J., concur.
JOSEPH E. MAHONEY, J., retired, of the Eleventh Appellate District, sitting by assignment.