This post examines an opinion the Ohio Court of Appeals
issued last fall in a civil suit: Fikri v. Best Buy, Inc., 1 N.E.3d 484
(2013). The court begins by explaining
that the suit was a response to “a number” of
computer-related problems and technical
support issues that [Ergun Fikri] experienced while a customer at Best Buy. On
February 4, 2012, [he] purchased a Toshiba laptop computer from the Best Buy
store in Mason, Ohio. The computer came with a one-year manufacturer's
warranty, which was limited to correcting defects in the computer's hardware.
In addition, [Fikri] purchased a separate two-year service contract with Best
Buy to provide technical support on the new Toshiba computer and his existing
Dell computer.
[Fikri] began experiencing problems
with his Toshiba computer within the first several months of his purchase and
contacted Best Buy. On July 16, 2012, Best Buy diagnosed the problem as a
corrupt operating system and recommended his computer be sent to its
Louisville, Kentucky center for warranty repairs. Since [Fikri] could not be
without his computer . . ., he elected to take [it] home and wait to fix it at
a more convenient time.
On August 16, 2012, [Fikri] returned to
the store to have his computer serviced. In the Best Buy service order dated
the same day, the service technician noted problems with the internet and also
that the computer `makes loud noises on startup and waking from sleep.’ The
service technician at Best Buy also performed a spyware and virus screen, in
which he noted that the scan detected nineteen spyware programs. As a result of
the problems [Fikri] was experiencing with the computer, Best Buy sent the
machine to its Chicago facility which replaced the mother board, HDD hard
drive, and Wi–Fi hardware systems. Pursuant to the manufacturer's warranty
still in place, [Fikri] was not charged for any of those services.
On August 28, 2012, [Fikri] received
his computer back from Best Buy. [He] testified at trial that the software and
spyware problems were corrected following the replacement of those parts.
However, [Fikri] was dissatisfied with the work done and raised a number of
complaints regarding his experience with Best Buy.
[He] alleged Best Buy negligently or
intentionally replaced his Toshiba power cord and battery with a used and
defective power cord and battery. He also disagreed with Best Buy's
decision to replace the Toshiba hardware, rather than just delete the spyware,
which he believed would have corrected the problem. In essence, [Fikri] alleged
that Best Buy's actions were motivated by a scheme to harvest component parts
for re-use and re-sale for its own pecuniary gain.
Fikri v. Best Buy,
Inc., supra.
The Court of Appeals also explains that in addition to his
complaints concerning the
Toshiba computer, [Fikri] also alleged
that Best Buy failed to service his Dell computer, which was also
covered under the two-year services contract with Best Buy. According to
him, Best Buy declined to work on the Dell laptop computer, which was also
infected with spyware. That computer was subsequently repaired by Office Depot
and billed to [Fikri].
Fikri v. Best Buy,
Inc., supra.
On October 29, 2012, Fikri filed a lawsuit
pro se, in the Mason Municipal Court, Small Claims Division, alleging violations of the Ohio Consumer Sales Practices Act (CSPA) for Best Buy's actions with respect to the Toshiba and
the Dell computers. The case was heard before a magistrate on February 6, 2013.
The magistrate found [Fikri] failed to establish any theory of liability and
entered judgment in favor of Best Buy. The trial court adopted the magistrate's
decision.
Fikri v. Best Buy,
Inc., supra. Fikri appealed the court's ruling, claiming it erred in
applying the CSPA in this case and that the trial court and the magistrate “erred
in their facts” and in “as well as in their application of” the Act. Fikri v. Best Buy, Inc., supra.
The Court of Appeals began its analysis of the issues in the
case by noting that this
case was adjudicated after a full
hearing in the Mason Municipal Court. As an appellate court, our review of a
trial court's decision is limited to whether the judgment is against the manifest weight of the evidence. . . . The Ohio Supreme Court has confirmed that
when reviewing the manifest weight of the evidence, an appellate court conducts
the same analysis in criminal and civil cases. Eastley v. Volkman, 132
Ohio St.3d 328, 972 N.E.2d 517 (Ohio Supreme Court 2012).
As such, we weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine
whether in resolving conflicts in the evidence, the finder of fact `clearly
lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.’ Id. quoting State v. Thompkins, 78 Ohio St.3d 380,
678 N.E.2d 541 (Ohio Supreme Court 1997).
If the evidence presented to the trial
court is susceptible to more than one interpretation, we are bound to give
it the construction that is consistent with the trial court's judgment and
finding of facts. Jones v. Holmes, 2013 WL 501731 (Ohio Court
of Appeals 2013). A reviewing court should not reverse a decision simply because
it holds a different opinion concerning the credibility of the witnesses and
the evidence submitted before the trial court. Artisan & Truckers
Cas. Co. v. JMK Transp., L.L.C., 994 N.E.2d 52 (Ohio Court of Appeals
2013). .The underlying rationale of this deferential standard rests with the
understanding that `the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.’ Mike
Castrucci Ford Sales, Inc. v. Hoover, 2008 WL 757526 (Ohio Court of Appeals
2008), quoting Seasons Coal Co., Inc. v. City of Cleveland, 10
Ohio St.3d 77, 461 N.E.2d 1273 (Ohio Supreme Court 1984).
Fikri v. Best Buy,
Inc., supra.
The court then took up Fikri’s first argument, noting that
the
thrust of [his] action involves Best
Buy's alleged violation of the Ohio Consumer Sales Protection Act. The CSPA
provides, `[n]o 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.’ [Ohio Revised Code §] 1345.02(A). . . .
The CSPA generally defines ‘”unfair or deceptive consumer sales
practices' as those that mislead consumers about the nature of the product they
are receiving, while ‘unconscionable acts or practices” relate to a supplier
manipulating a consumer's understanding of the nature of the transaction at
issue.’ Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177,
855 N.E.2d 825 (Ohio Supreme Court 2006), quoting Johnson v. Microsoft
Corp., 106 Ohio St.3d 278, 834 N.E.2d 791 (Ohio Supreme Court 2005). A
nonexhaustive list of practices defined as `unfair’ or `deceptive’ is contained
in [Ohio Revised Code] 1345.02(B).
Fikri v. Best Buy,
Inc., supra.
The court also noted that at the trial, Fikri testified “on
his own behalf” with regard to the
problems he experienced with both his
Toshiba and Dell computers. He testified he purchased his Toshiba computer from
Best Buy, and elected to put both his Toshiba computer and his Dell computer
under the service contract with Best Buy. He also testified as to the defects
associated with both computers, the potential causes of those defects, the
hardships he experienced in resolving those issues, as well as his own theories
accounting for Best Buy's actions. Matthew Konn, the general manager of the
Best Buy store located in Mason, Ohio testified on behalf of Best Buy. His
testimony largely related to the standard practices and procedures of the
company.
After considering the evidence
presented, the trial court concluded [Fikri] failed to prove his case by a
preponderance of the evidence. Based on our review of the record, there is
competent, credible evidence to support the trial court's factual findings and
its decision was not against the manifest weight of the
evidence. Accordingly, we affirm the judgment of the trial court.
Fikri v. Best Buy,
Inc., supra.
The Court of Appeals then noted that Fikri alleged “three
different acts” he believed
constitute `unconscionable’ or
`deceptive’ actions under the CSPA. Namely, [he] points to the number of
defects in the computer that he purchased, an allegation that Best Buy ordered
replacement parts under his manufacturer's warranty in order to further a `harvesting’
scheme, and the failure of Best Buy to inform him about the spyware that was
found on his computer.
In its decision, the trial court briefly summarized [Fikri’s]
testimony, which `included theories of unnecessary replacement parts, a
suspicion that Best Buy had returned a defective power cord to him so that he
would have to buy a new one, and a Wikipedia description of Spyware. Further,
his only other testimony presented for unfair or deceptive sales practices were
other customer reviews with the Better Business Bureau.’
With respect to the quality of his
computer, [Fikri] first argues that the definition of `deception’ under Ohio
Revised Code § 1345.02 is met in the present case based on the `magnitude
and total number of defects’ associated with his laptop. The trial court heard [his]
testimony as to the numerous problems that he experienced with his computer and
the steps taken to resolve the issue. [Fikri] testified at length about the
stress, loss of business productivity, and numerous trips to the store that he
had to make in order to resolve the issue.
However, merely because a customer
experiences difficulties with a product after its purchase does not invariably
mean the CSPA was violated. The burden of proof is on the party bringing the
action to prove the facts necessary for his case by a preponderance of the evidence.
Adaptable Custom Homes, Inc. v. Affordable Luxury Homes, Inc., 1992 WL
29236 (Ohio Court of Appeals 1992). . . . [Fikri] failed to present any
evidence that the computer problems were caused by Best Buy.
To the contrary, Best Buy proffered
testimony showing that spyware can come onto any computer through a number of
ways, including simple web browsing. After having considered all of the
evidence introduced on this matter, we find the trial court's decision that
there was no violation of the CSPA based on the defects in the computer was not
against the manifest weight of the evidence.
Fikri v. Best Buy,
Inc., supra.
Next, Fikri alleged that Best Buy engaged in “unconscionable
sales practices” under
Ohio Revised Code §
1345.02(B)(7) in the sale of his laptop by unnecessarily replacing component
parts of his computer when they were not needed. In support, [he] entered a
work order into the record, which shows handwritten notes by a Best Buy
employee indicating Best Buy conducted a spyware and virus scan of his
computer, but failed to remove the spyware that was found.
[Fikri] alleges Best Buy chose to
obtain replacement parts under his warranty with the manufacturer, instead of
simply deleting the problematic spyware software. [His] theory is that Best Buy
took these actions to further a self-dealing, `harvesting’ arrangement whereby
Best Buy would order unnecessary replacement parts from a manufacturer under
the manufacturer's warranty and then re-use those component parts in their own
operations. He attempts to support this allegation with another exhibit that
states in the fine print of a service document that Best Buy is authorized to `[u]se
new or rebuilt replacement parts that perform to the factory operational
specifications of the product.’
Fikri v. Best Buy,
Inc., supra.
Best Buy denied these allegations at the trial, offering
testimony that the notes made
by the employee were only preliminary
notes and did not reflect the actual removal of spyware. Best Buy also
introduced testimony that the spyware was removed at a later time. Other than [Fikri’s]
own theory, there was no evidence placed in the record demonstrating Best Buy
was involved in an illegal harvesting scheme.
As a result, the trial court weighed
the conflicting evidence of the two sides and found [Fikri] had not proven
his case by a preponderance of the evidence. Based on our review of the record,
we find the trial court's conclusion that Best Buy did not violate the CSPA is
supported by competent, credible evidence and is not against the manifest
weight of the evidence.
Fikri v. Best Buy,
Inc., supra.
Next, Fikri argued that the trial court erred in not finding
Best Buy’s actions unconscionable
because they allegedly
failed to inform him of the existence of spyware until ten days after it was
discovered on his computer. However, [he] failed to present any evidence
demonstrating why this constitutes an unconscionable action or that a ten-day
time period was unreasonable or excessive. Accordingly, the trial court's
decision finding that appellant failed to prove a violation of the CSPA was not
against the manifest weight of the evidence.
Fikri v. Best Buy,
Inc., supra.
The Court of Appeals then took up Fikri’s second argument,
in which he raised “three additional issues concerning the trial court's
decision.” Fikri v. Best Buy, Inc.,
supra. First, he argued that his power cord and battery were
switched and replaced while the
computer was in the possession of Best Buy. He contends the trial court erred
when it concluded Best Buy was not liable for the damages associated with the
purchase of a new power cord. [Fikri] testified that, when he gave the computer
to Best Buy, the power cord and battery were new and undamaged.
However, he claimed that when the
computer was returned to him, the power cord and battery both needed to be
replaced. He alleged Best Buy was responsible for this because `a power cord
does not wear out in six months, let alone in ten days when it was in their
possession.’ Accordingly, [Fikri] argued that Best Buy had intentionally or
negligently exchanged his power cord with this defective power cord.
Fikri v. Best Buy,
Inc., supra.
The Court of Appeals did not agree, noting that at trial,
Best Buy introduced testimony
showing there were internal
procedures in place for preventing a switch in component parts. According to
testimony at trial, Best Buy places stickers on each customer item to ensure
the proper component parts stay together. Best Buy also introduced testimony
that the power cord appeared to be damaged as a result of normal wear and tear.
The trial court concluded [Fikri] failed to demonstrate by a preponderance of
the evidence that the items were actually switched.
Our review of the record demonstrates
sufficient, competent and credible evidence to support the trial court's
decision. Accordingly, the trial court's decision was not in error.
Fikri v. Best Buy,
Inc., supra.
Next, Fikri argued that the trial judge erred “in finding there
was no breach of contract with respect to the service contract covering both
his Toshiba and Dell computers.” Fikri v. Best Buy, Inc., supra. The court noted that under his breach of
contract argument, Fikri raised “a number of issues including: failure to
install printer drivers, failure to remove spyware, failure to service the Dell
computer, as well as an allegation that work was performed on his computer
without his consent.” Fikri v. Best Buy,
Inc., supra. Again, the Court of Appeals did not agree, explaining that the
trial court judge found that
failed to establish Best Buy breached
any contract. While the trial court found [Fikri] had purchased a two-year
service contract with Best Buy, the court determined that [he] did not
introduce sufficient evidence to show that Best Buy breached that service
contract. After careful consideration, we cannot conclude that the trial court
erred in finding that Best Buy did not breach its service contract with [Fikri].
The record demonstrates Best Buy
serviced [his] computers multiple times pursuant to the service agreement in
place between the parties. [Fikri] testified that the software issue is now
corrected on both computers. While [he] ultimately took his Dell laptop to
another store to be fixed, he did not present any evidence showing Best Buy
refused to honor its service contract.
Simply, as noted by the trial court, [Fikri’s]
`trial evidence provided no coherent explanation linking his Dell computer to a
claim for damages against Best Buy.’ Accordingly, there was no error in the
trial court's determination that Best Buy did not breach the service contract
with [Fikri].
Fikri v. Best Buy,
Inc., supra.
Finally, Fikri claimed the trial court erred in deciding his
damages were not
proven or justified. While a prevailing
party is entitled to damages under the CSPA, it is incumbent on the plaintiff
to prove by a preponderance of the evidence that a prohibited act has occurred.
Since plaintiff failed to prove he is entitled to recovery for the alleged
violations by Best Buy, he is not entitled to any money damages.
Fikri v. Best Buy,
Inc., supra.
The Court of Appeals therefore affirmed the judgment of the
trial court. Fikri v. Best Buy, Inc.,
supra.
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