Barlow v. Gap, Inc. , 2020 Ohio 4382 ( 2020 )

[Cite as Barlow v. Gap, Inc., 2020-Ohio-4382.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
MEGHAN LEWIS BARLOW, :
Plaintiff-Appellant, :
No. 109101
v. :
THE GAP, INC., :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 10, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-912111
Appearances:
Jeremy Gilman, Attorney, L.L.C., and Jeremy Gilman;
Harvey Abens Iosue Co., L.P.A., Matthew B. Abens, and
David L. Harvey, III, for appellant.
Tucker Ellis L.L.P., Tariq M. Naeem, Chelsea R. Mikula,
and Chelsea M. Croy Smith; Morgan, Lewis & Bockius
L.L.P., and Wendy West Feinstein, for appellee.
MARY J. BOYLE, P.J.:
Plaintiff-appellant, Meghan Lewis Barlow, appeals the trial court’s
judgment granting defendant-appellee, The Gap, Inc.’s (“The Gap”), motion for
summary judgment. Barlow raises one assignment of error for our review:
The trial court erred by granting [The Gap’s] Motion to Dismiss the
Complaint as a Matter of Law, Converted to a Motion for Summary
Judgment.
Finding no merit to her assignment of error, we affirm the trial court’s
judgment.
I. Factual Background and Procedural History
In March 2019, Barlow filed a complaint against The Gap, alleging
that it violated Ohio’s Consumer Sales Practices Act, R.C. Chapter 1345 (“CSPA”).
Barlow sought a declaratory judgment that The Gap violated the CSPA, and she
requested injunctive relief to stop The Gap from continuing to violate the CSPA. She
also sought attorney fees incurred in bringing the lawsuit.
Barlow alleged that The Gap owns and operates retail stores in
Cuyahoga County, Ohio, where it sells apparel and goods to consumers. Barlow
alleged that in 2017 and 2018, she “purchased goods primarily for personal, family,
or household use from a store owned and operated by The Gap located in Cuyahoga
County, Ohio.” She claimed that The Gap displayed signs near its store entrances
and windows that advertised promotions to encourage the public to enter its stores
and buy its goods. She attached images of three such signs to her complaint. The
signs contained the following text:
Sale, take an extra 40% off Markdowns[.] Gap[.] Certain restrictions
apply. See a store associate for details. Discount taken at register.
40% off your purchase[.] Excludes markdowns. Certain restrictions
apply. See store associate for details.
Buy one, get one 50% off entire store[.] Gap[.] Certain restrictions
apply. See a store associate for details.
On each sign, the text announcing the promotion was in large print, while the text
indicating the exclusions and restrictions was in smaller print near the bottom of the
signs.
Barlow alleged that the signs were deceptive acts or practices in
connection with consumer transactions in violation of R.C. 1345.02(A). She alleged
that the signs do not clearly and conspicuously state, near the words announcing
The Gap’s promotions, any material exclusions, reservations, limitations,
modifications, or conditions to those promotions.
In May 2019, The Gap filed a motion to dismiss Barlow’s complaint
for failing to state a claim upon which relief could be granted pursuant to
Civ.R. 12(B)(6). The Gap argued that Barlow failed to allege a deceptive act. The
Gap maintained that the signs were not offers within the meaning of the CSPA, not
false, and not material to a purchasing decision because the signs did not identify
specific products or prices. The Gap supported its motion to dismiss with a
declaration of Matthew Waterbury, senior manager of marketing at The Gap.
Waterbury declared the dimensions of the signs included in Barlow’s complaint and
the dates those signs were displayed. The declaration attached copies of the signs as
exhibits and stated that the images were true and correct copies of the images from
the complaint.
Barlow filed a motion to convert The Gap’s motion to dismiss to a
motion for summary judgment, arguing that The Gap’s motion to dismiss referred
to matters outside of the complaint, including an unknown “reasonable customer”
and Waterbury’s declaration. The trial court denied the motion.
Barlow then filed an opposition to The Gap’s motion to dismiss,
arguing that her complaint set forth allegations as to each element to demonstrate
that The Gap’s signs are deceptive under Ohio Adm.Code 109:4-3-02(A)(1). The
Gap filed a reply in support of its motion to dismiss. Barlow moved to strike The
Gap’s reply as filed without leave of court in violation of Loc.R. 11.0(D) of the Court
of Common Pleas of Cuyahoga County, General Division. The Gap moved for leave
to file its reply. The trial court granted The Gap’s motion for leave and denied
Barlow’s motion to strike the reply brief.
In June 2019, during a case management conference, the trial court
converted The Gap’s motion to dismiss to a motion for summary judgment
(hereinafter referred to as “The Gap’s motion for summary judgment”). The trial
court permitted the parties to engage in further discovery limited to the topics in
The Gap’s motion for summary judgment and to supplement their motions. The
Gap did not supplement its motion.
In September 2019, Barlow filed a new opposition to The Gap’s
motion for summary judgment, arguing that The Gap failed to support its motion
with any evidence. Barlow simultaneously moved to strike Waterbury’s declaration
because it was not an affidavit. The Gap filed a reply in support of its motion for
summary judgment, arguing that the only relevant facts to its motion were the
undisputed language of its signs. In support of its reply, The Gap filed an affidavit
of Matthew Waterbury, which was substantively identical to his declaration. Barlow
moved to strike the Waterbury affidavit as untimely, which The Gap opposed.
On October 7, 2019, the trial court allowed The Gap to replace the
Waterbury declaration with the Waterbury affidavit and granted The Gap’s motion
for summary judgment. It is from this judgment that Barlow now appeals.
II. Law and Analysis
In her single assignment of error, Barlow argues that the trial court
erred by granting The Gap’s motion for summary judgment. She contends that the
trial court’s judgment should be reversed because (1) The Gap failed to produce any
evidence in support of its motion for summary judgment, (2) the CSPA is a strict-
liability statute, and she does not need to show that the signs were false or material
to customers’ purchasing decisions, and (3) The Gap’s signs are “offers” within the
meaning of Ohio Adm.Code 109:4-3-01(C)(3) and violate the disclosure
requirements of Ohio Adm.Code 109:4-3-02(A)(1). The Gap argues that the
pleadings and Waterbury’s affidavit satisfied its burden on summary judgment and
counters each of Barlow’s arguments.
We review a trial court’s judgment granting a motion for summary
judgment de novo. Citizens Bank, N.A. v. Richer, 8th Dist. Cuyahoga No. 107744,
2019-Ohio-2740, ¶ 28. Thus, we independently “examine the evidence to determine
if as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland Bd. of
Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997). We therefore
review the trial court’s order without giving any deference to the trial court. Citizens
Bank at ¶ 28. “On appeal, just as the trial court must do, we must consider all facts
and inferences drawn in a light most favorable to the nonmoving party.” Glemaud
v. MetroHealth Sys., 8th Dist. Cuyahoga No. 106148, 2018-Ohio-4024, ¶ 50.
Pursuant to Civ.R. 56(C), summary judgment is proper where
(1) “there is no genuine issue as to any material fact,” (2) “the moving party is
entitled to judgment as a matter of law,” and (3) “reasonable minds can come to but
one conclusion, and that conclusion is adverse to the party against whom the motion
for summary judgment is made.” Harless v. Willis Day Warehousing Co., 54 Ohio
St.2d 64, 66, 375 N.E.2d 46 (1978). Trial courts should award summary judgment
only after resolving all doubts in favor of the nonmoving party and finding that
“reasonable minds can reach only an adverse conclusion” against the nonmoving
party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138(1992).
Under the CSPA, “[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.” R.C. 1345.02(A). “Any consumer may seek a
declaratory judgment, an injunction, or other appropriate relief against an act or
practice that violates this chapter.” R.C. 1345.09(D).
The Ohio Attorney General adopted regulations, Ohio Adm.Code
109:4-3, to define what conduct violates the CSPA. The purposes and policies of
these regulations are to (a) “[d]efine with reasonable specificity the acts and
practices” that violate the CSPA, (b) “[p]rotect consumers from suppliers who
engage in referral selling, commit deceptive acts or practices, or commit
unconscionable acts or practices,” and (c) “[e]ncourage the development of fair
consumer sales practices.” Ohio Adm.Code 109:4-3-01(A)(2). The regulations
“shall be liberally construed and applied to promote their purposes and policies.”
Ohio Adm.Code 109:4-3-01(A)(1).
The regulation at issue in this appeal is Ohio Adm.Code 109:4-3-
02(A)(1), which states:
It is a deceptive act or practice in connection with a consumer
transaction for a supplier, in the sale or offering for sale of goods or
services, to make any offer in written or printed advertising or
promotional literature without stating clearly and conspicuously in
close proximity to the words stating the offer any material exclusions,
reservations, limitations, modifications, or conditions. Disclosure shall
be easily legible to anyone reading the advertising or promotional
literature and shall be sufficiently specific so as to leave no reasonable
probability that the terms of the offer might be misunderstood.
“Supplier” means “a seller * * * or other person engaged in the
business of effecting or soliciting consumer transactions, whether or not the person
deals directly with the consumer.” R.C. 1345.01(C). The parties do not dispute that
The Gap is a supplier. “Consumer transaction” means “a sale * * * or other transfer
of an item of goods * * * to an individual for purposes that are primarily personal,
family, or household, or solicitation to supply any of these things.” R.C. 1345.01(A).
The parties do not dispute that The Gap displays its signs at issue here “in
connection with a consumer transaction.”
A. The Gap’s Support for Its Motion for Summary Judgment
Barlow contends that The Gap failed to carry its evidentiary burden
on summary judgment. We disagree.
The moving party has the burden to show that no genuine issue of
material fact exists. Citizens Bank, 8th Dist. Cuyahoga No. 107744, 2019-Ohio-
2740, at ¶ 30. Civ.R. 56(C) provides the list of materials that parties may use to
support a motion for summary judgment:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely
filed in the action, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law. No evidence or stipulation may be considered except as stated in
this rule.
Here, The Gap supported its motion for summary judgment with the
pleadings and Waterbury’s affidavit. Paragraphs 15 through 20 of the complaint
include images and descriptions of The Gap’s signs underlying this appeal. At no
point has The Gap denied the allegations setting forth the images and language of
the signs. Barlow challenged Waterbury’s affidavit on procedural grounds, but
Waterbury merely restates the complaint’s allegations about the descriptions of the
signs and attaches as exhibits clearer images of the signs included in the complaint.
There is no genuine dispute about the language and text placement on the signs, and
The Gap relied on no additional facts in support of its motion for summary
judgment. We therefore reject Barlow’s arguments that The Gap failed to meet its
evidentiary burden.
B. Falsity and Materiality
The Gap argues that, regardless of whether The Gap’s signs are
“offers” and properly disclose restrictions, it is not liable under the CSPA because
Barlow has not claimed that The Gap’s signs are false and material to customers’
purchasing decisions. The Gap contends that R.C. 1345.02 is not a strict-liability
statute, but rather CSPA violations are considered through a lens of reasonableness.
Barlow argues that R.C. 1345.02 is a strict-liability statute and maintains that falsity
and materiality are “immaterial” because the text of Ohio Adm.Code 109:4-3-
02(A)(1) does not require offers to be false or material to purchasing choices.
Ohio courts have not interpreted the CSPA to be a strict-liability
statute and instead have considered “reasonableness” when determining whether
conduct violates the CSPA. See Grgat v. Giant Eagle, Inc., 2019-Ohio-4582, 135
N.E.3d 846, ¶ 17 (8th Dist.) (“[T]here is nothing in the plain language of
R.C. 1345.02(B) that indicates a purpose to impose strict liability. And courts have
declined to interpret the statute in a manner that would impose strict liability.”);
Struna v. Convenient Food Mart, 160 Ohio App.3d 655, 2005-Ohio-1861, 828
N.E.2d 647, ¶ 15 (8th Dist.) (“[C]ourts shall apply a reasonableness standard in
determining whether an act amounts to deceptive, unconscionable, or unfair
conduct.”); Shumaker v. Hamilton Chevrolet, Inc., 184 Ohio App.3d 326, 2009-
Ohio-5263, 920 N.E.2d 1023, ¶ 19-22 (4th Dist.) (applying a reasonableness
standard); Conley v. Lindsay Acura, 123 Ohio App.3d 570, 575, 704 N.E.2d 1246(10th Dist.1997) (“[W]e decline to hold that reasonableness plays no part
whatsoever in the determination as to whether an act amounts to deceptive,
unconscionable, or unfair conduct.”). Barlow cites no cases to the contrary to
support her position that R.C. 1345.02 is a strict-liability statute.
Instead of imposing strict liability, Ohio courts “have held that
whether a supplier’s act or omission is a violation of the CSPA depends on how a
reasonable consumer would view it.” Grgat at ¶ 18. Conduct violates the CSPA if it
“‘has the likelihood of inducing a state of mind in the consumer that is not in accord
with the facts.’” Chesnut v. Progressive Cas. Ins. Co., 166 Ohio App.3d 299, 2006-
Ohio-2080, 850 N.E.2d 751, ¶ 23 (8th Dist.), quoting McCullough v. Spitzer Motor
Ctr., Inc., 8th Dist. Cuyahoga No. 64465, 1994 Ohio App. LEXIS 262, 23 (Jan. 27,
1994).
Moreover, this court has previously held that for conduct to be
“deceptive under the CSPA,” the conduct “must be both false and material to the
consumer transaction.” Grgat at ¶ 16. In Grgat, the plaintiff alleged that Giant
Eagle violated the CSPA with signs that promoted a discounted price for a specific
number of units for a particular product, such as ten cans for $10, without specifying
that the price of a single can was also discounted. Id. at ¶ 3. The plaintiff argued
that he did not need to prove that the signs were false or material to his purchasing
decisions because R.C. 1345.02 is a strict-liability statute and nothing in the text
required him to prove falsity or materiality. Id. at ¶ 11-16. This court disagreed. Id.
at ¶ 16-18.
We explained that “[a]lthough R.C. 1345.02 does not use the word
‘falsity’ or ‘false,’ each and every deceptive practice listed in the R.C. 1345.02
describes a misrepresentation of the truth, i.e., a falsity. * * * [F]alsity is the essence
of deception.” Grgat, 2019-Ohio-4582, 135 N.E.3d 846, at ¶ 15. Likewise, for the
materiality requirement, we explained:
Although the R.C. 1345.02 does not explicitly state that
misrepresentations must be material to the transaction, it is well
established that a deceptive act or practice under the CSPA is one that
“‘has the tendency or capacity to mislead consumers concerning a fact
or circumstance material to a decision to purchase the product or
service offered for sale.’” (Emphasis added.) Richards v. Beechmont
Volvo, 127 Ohio App.3d 188, 711 N.E.2d 1088 (1st Dist.1998), quoting
Cranford v. Joseph Airport Toyota, Inc., 2d Dist. Montgomery No.
15408, 1996 Ohio App. LEXIS 2252 (May 17, 1996). See also Davis v.
Byers Volvo, 4th Dist. Pike No. 11CA817, 2012-Ohio-882, ¶ 29.
Id. at ¶ 16.
Therefore, regardless of whether The Gap’s signs are considered
“offers” under the CSPA and whether the signs failed to disclose restrictions
pursuant to Ohio Adm.Code 109:4-3-02(A)(1), The Gap would not be liable under
the CSPA unless Barlow proved that the signs were false, material to consumers’
purchasing decisions, and likely to mislead a reasonable consumer. Barlow,
however, has not alleged, argued, or presented evidence that The Gap’s signs were
false, material, or misleading. Barlow’s arguments that The Gap’s signs are offers
and that the signs failed to disclose restrictions are therefore moot, and we need not
address them.
Even drawing all facts and inferences in favor of Barlow, we find that
there is no genuine issue as to any material fact, The Gap is entitled to judgment as
a matter of law, and reasonable minds can come to but one conclusion in favor of
The Gap. We therefore overrule Barlow’s assignment of error and affirm the
judgment of the trial court.
It is ordered that appellee and appellant split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR